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If the President Violates the Constitution and No One has Standing to Sue, Did he Really Break the Law?

That seems to be the question (of the “if a tree falls in the woods” variety) posed by this New Republic article entitled “The Debt Ceiling: Why Obama Should Just Ignore it.” Although the author cites Garrett Epps and others for the proposition that there is a “strong argument” that the President has the authority to ignore the debt limit, his principal focus is on the proposition that no one would have standing to challenge the action in court. In other words, who cares if its illegal if no one can challenge it?

On the standing question, the article first argues, citing Lou Fisher, that individual members of Congress would lack standing to challenge the President if he should order the Treasury Department to issue debt in violation of the statutory limit. This is certainly true (for the same reason that they lack standing to challenge the Libya war). Less clear is whether the House or Senate would have standing, but for present purposes lets assume that they would not.

Could private parties bring suit? The article suggests that perhaps holders of credit default swaps (who are betting on a U.S. Treasury default) could sue. More likely, holders of congressionally authorized U.S. bonds might sue, arguing that the values of their securities are diluted by the President’s action.

In any event, the issue of standing has nothing to do with the legality of violating the debt limit. There are many things that Presidents can do which are not justiciable (whether for lack of plaintiffs with standing or for other reasons) or which cannot, as a practical matter, be challenged in court. Presidential actions that could theoretically be prosecuted as criminal violations (like, say, violating the torture statute) will almost never end up in court since Presidents control the prosecution mechanism and the pardon power. This doesn’t make the President’s actions automatically legal. Put another way, President Nixon was wrong when he said, “when the President does it, that means that it is not illegal.”

It is of course true that Presidents have often taken actions which are of debatable legality and sometimes taken actions which are almost certainly illegal. Perhaps the author means to suggest that presidential lawbreaking may sometimes be justified by extraordinary circumstances. If so, he would not be the first. But, again, this is an entirely separate issue from standing.

Nor is Congress limited to judicial remedies for redress of presidential illegality. One important remedy is provided by the power of the purse:

 

The framers were familiar with efforts by English kings to rely on extra-parliamentary sources of revenue for their military expeditions and other activities. Some of the payments came from foreign governments. Because of these transgressions, England lurched into a civil war and Charles I lost both his office and his head. The rise of democratic government is directly traceable to legislative control over all expenditures.

The U.S. Constitution attempted to avoid the British history of civil war and bloodshed by vesting the power of the purse squarely in Congress. Under Article I, Section 9, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” In Federalist No. 48, James Madison explained that “the legislative department alone has access to the pockets of the people.” The power of the purse, he said in Federalist No. 58, represents the “most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining redress of every grievance, and for carrying into effect every just and salutary measure.”

Louis Fisher, The Politics of Executive Privilege 27-28 (2004).

Of course, were the President able to wrest the power of the purse from Congress, as the New Republic author advocates, he would have gone a long way toward making himself into the unaccountable “constitutional dictator” some fear.

If that lamentable situation were to arise, Congress would have little choice but to exercise the ultimate remedy provided by the Constitution (and which the most creative legal scholars or OLC-types have been unable to theorize away). See William Rehnquist, Grand Inquests (1992).

 

6 Comments

  1. Daniel says:

    Are there any inherent (i.e. non-statutory) powers of the House or Senate at play here as well (besides, of course, refusing to appropriate money)?

  2. Carl Davis says:

    The so-called “Republicans” should by all rights and in the best interest of our country allow the Bush tax-cuts (give-a-ways) to expire. Never before in the history of our country have taxes been cut in time of war. They were 77% and 94% respectively during and even years after the two World Wars.

    If they continue to play politics with our country though then Obama should just over-ride them as Nixon diIn 1974 Congress and President Nixon get into a battle as to who will control the nation’s purse strings. The president impounded funds allocated by Congress for projects distasteful to his party. By refusing to spend the money the executive basically usurps the traditional power of the Congress over budget and spending. Congress then passes the Congressional Budget and Impoundment Control Act which precipitate an office of Budget Management. Congress now has an organized centralized method for budgeting and allocating funds. But this new process continues the misdirected policy of including Social Security funds into the unified budget. This, in effect, reduces the protected Social Security Trust fund to a part of government’s general spending.”

  3. jimM47 says:

    Posted elsewhere, but I’ll repeat it: I would think you’d only need to find a regulated entity restricted to purchasing lawful debt only. One of them could buy it, and someone with standing could sue them. Structure it right and they might even be able to implead the government.

    I’m thinking here of Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921) (Federal Farm Loan Act adjudicated constitutional in dispute between bank and shareholder over purchase of bonds issued by Federal Land Banks).

  4. Chris Bell says:

    In this case, the President would violate the law by ordering Secretary Geithner to issue new debt in excess of the debt limit. The holders of that debt might have standing to sue.

  5. [...] likely avoid the issue on political question or other grounds. Brad DeLong is not convinced.  Michael Stern has thoughts on this question [...]

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