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Archive of posts filed under the Power of the Purse category.

Court Rejects Justice Department Plan to Avoid the Merits of House’s Obamacare Lawsuit

Yesterday Judge Collyer rejected the Justice Department’s motion to certify for interlocutory appeal her ruling that the House has standing to pursue its claim that the Obama administration has illegally spent billions of dollars in “cost-sharing” payments to insurance companies under the Affordable Care Act. The Justice Department had candidly admitted that it wanted an [...]

Is a Lawsuit Really the House’s Only Remaining Option?

In response to the argument that the House needed access to the courts in order to protect the separation of powers and its constitutional prerogatives, Representative Slaughter noted “the Founding Fathers gave to the legislative branch the weapons to defend itself without running to the court.” She then proceeded to list these tools of self-defense, [...]

Andrew Johnson, the New York Times and the Public Debt Clause

After a mere two and a half years, the Treasury Department has produced documents responsive to my FOIA request. As you may recall (ok, you probably don’t recall), I asked Treasury to produce “[a]ll documents that contain, discuss, refer or relate to any legal opinion or analysis by the Treasury Department General Counsel, or any [...]

The Debt Limit and the Paradox of the Post-Nuclear Senate

The Senate is set to vote on cloture for the debt ceiling bill that passed the House on Monday. If the cloture vote should fail (i.e., if there are not 60 votes to end debate and advance the measure to final passage), we will have an interesting illustration of the paradox of the post-nuclear Senate. [...]

The Public Debt Clause and Other Things You Can’t Take to the Bank

Monday the Federalist Society hosted a teleforum on the debt ceiling with Senator Mike Lee, David Rivkin of Baker Hostetler, and Professor Richard Epstein. The call featured an interesting debate between Rivkin and Epstein on Section 4 of the 14th Amendment, also known as the Public Debt Clause. Unfortunately, the sound quality on Epstein’s line [...]

The Origination Clause and the Fiscal Cliff (updated)

Since the discussion of the issue has been rather muted, it may be worth flagging the potential impact of the Origination Clause, art. I, sect. 7, cl. 1, on how the so-called “fiscal cliff” is resolved. The Origination Clause provides that “[a]ll Bills for raising Revenue shall originate in the House of Representatives; but the [...]

The Public Debt Clause and the Coming Debt Limit Crisis

Amidst all the legal excitement this week, you may have missed BNA White House Reporter Cheryl Bolen’s article on Section 4 of the 14th Amendment (AKA, the Public Debt Clause) and the possibility of another debt ceiling crisis. The article (“Obama Could Face Sophie’s Choice as Country Approaches Debt Limit”) begins: “As the nation again [...]

Seeking Section Four Transparency

As the national debt rises rapidly toward the latest “ceiling”, Professor Epps once again proposes (“A Gun to the Debt-Ceiling Fight”) the President invoke (or threaten to invoke) Section Four of the Fourteenth Amendment to avoid all that unpleasantness from last time. Needless to say, I don’t think any more of the legal merits of [...]

Would it be “Unconstitutional” to Veto a Debt Limit Increase?

From the President’s veto message: This bill would make it almost inevitable that the Government would default for the first time in our history. This is deeply irresponsible. A default has never happened before, and it should not happen now. I have repeatedly urged the Congress to pass promptly legislation raising the debt limit for [...]

Has Obama Already “Invoked” the Public Debt Clause?

Jack Balkin says yes. Balkin argues that by telling bondholders that they will get paid regardless of whether the debt limit is raised, the President is implicitly invoking the Public Debt Clause. I say no (or, rather, not necessarily). One could construe the existing statutory scheme to permit prioritization wholly apart from any constitutional issue. [...]