“Future Legislative Acts” and the Ninth Circuit’s Narrow Reading of Speech or Debate

In United States v. Renzi, the Ninth Circuit rejected the former congressman’s claim that the Speech or Debate Clause prohibits charging him with having demanded, as a condition of supporting land exchange legislation that two private companies were seeking, that those companies include in the proposed legislation land owned by Sandlin, a Renzi associate (who, unbeknownst to the companies, owed Renzi a substantial sum of money).

The court largely based its holding on United States v. Brewster, 408 U.S. 501 (1972), in which the Supreme Court held that bribery was not protected by Speech or Debate. Specifically, the Brewster Court emphasized that bribery involves the acceptance of money in exchange for the promise to perform a future legislative act (i.e., to sponsor or facilitate the bill that the bribe-giver is attempting to get enacted). The Court reasoned that the there was a distinction between performing a legislative act and promising to perform a legislative act in the future. Therefore, it concluded that the Clause would not prohibit showing that a Member of Congress had taken money in exchange for a promise to support future legislation.

The Ninth Circuit characterizes Renzi as being on all fours with Brewster.  Renzi promised to perform a future legislative act, i.e., introduce and support land exchange legislation, if the companies would pay money to a third person with whom Renzi had a business relationship. Except for the indirect means of payment, the court concludes that Renzi’s actions were exactly the same as those involved in Brewster. And the court finds no legal relevance to the fact that Renzi’s scheme was “more refined, more sophisticated,” i.e., that “[r]ather than selling his office for cash, he was wise enough to at least attempt to conceal his crime by using more indirect means of payment.”

The problem is that the Ninth Circuit’s position is premised on a subtle but significant mischaracterization of the charges against Renzi. The court describes the allegations against Renzi (which it doesn’t quote verbatim) as if the congressman had demanded that the private companies purchase the Sandlin property in as a condition of his support of legislation, apart from his insistence that the property be included in the legislation. But the indictment actually alleges that Renzi “insisted that the Sandlin Property must be included in the land exchange legislation if he was to be a sponsor.”

It is true that the indictment clearly lays out that Renzi was aware that the companies would have to purchase the property in order to include it in the legislation and one might infer, though the indictment does not so allege, that Renzi and Sandlin conspired to ensure that the companies had to purchase the property, rather than simply obtaining an option to purchase, in order to fulfill Renzi’s terms. But on its face the indictment can be sustained only if the jury finds that Renzi had an improper motive for insisting that the land exchange legislation be crafted to include the Sandlin property. This makes Renzi’s case distinguishable from Brewster, where the legislator’s motive for crafting, supporting or voting for the legislation was not at issue.

Thus, the Renzi case would seem to pose the question of whether negotiating over the terms of a particular piece of legislation is itself outside the legislative process because it relates only to “future” legislative acts. This is not a question resolved in Brewster and the Ninth Circuit’s position marks a significant expansion of Brewster’s rationale. Indeed, if the Renzi court is correct, there would seem to be very little left of the Speech or Debate privilege outside the corners of formal legislative proceedings, such as committee hearings and debates on the floor.

Finally, it should be noted that this Speech or Debate issue is not the one on which there is a circuit split (I will discuss the latter in a separate post). Nevertheless, it is an important issue that the Supreme Court ought to resolve, particularly if it is going to hear the case anyway.


Congressional Witnesses at the Clemens Trial

Needless to say, I don’t know exactly how the government plans to prove the “congressional facts” necessary to establishing its case against Roger Clemens. The government, however, has announced an intention to call two House witnesses, Charles Johnson (the former House Parliamentarian) and Phil Barnett (a long-time aide to Representative Henry Waxman, who chaired the COGR at the time that Clemens testified). They are clearly an important part of the government’s evidence with regard to the congressional facts.

The House Counsel’s office has filed a motion explaining to the court that it will be representing these witnesses at trial and may pose Speech or Debate or other objections to questions posed by either the prosecution or defense. This motion tells us a little bit about what they may testify to.

Johnson. The motion states that “[w]e do not anticipate, at this time, that Mr. Johnson will be questioned at trial by the prosecution about matters that are Speech or Debate protected or protected by other privileges.”  Presumably, therefore, Johnson will be testifying about his general knowledge and expertise on House rules and procedure. Thus, for example, he may explain how the House adopts its rules, forms committees and establishes areas of jurisdiction for each committee.

Johnson may also testify regarding COGR’s investigatory authority under the House Rules. Although House Rule X (1)(h) lists COGR’s specific areas of legislative jurisdiction (none of which would relate to the use of steroids in baseball), clause (4)(c)(2) provides that COGR “may at any time conduct investigations of any matter without regard to [rule provisions] conferring jurisdiction over the matter to another standing committee.” Referring to this provision could lead to an interesting legal/factual debate over what exactly it means. Does it mean that COGR can investigate anything under the sun? Does it mean that COGR can investigate anything that another committee of the House could investigate? (If so, one might ask whether COGR reported its “findings and recommendations” regarding the steroid investigation to another committee of jurisdiction, as required by clause 4(c) (2)). Or does it mean that COGR can investigate anything that relates to oversight of the federal government (which would not necessarily encompass the steroid investigation)?

Barnett. The House Counsel says that “Mr. Barnett will be questioned by the prosecution about matters that are Speech or Debate protected that are relevant to its case in chief. Mr. Barnett, in keeping with the position taken by the Committee itself, intends in general not to assert the privilege with respect to (i) matters relating to formal, public Committee investigatory activities concerning steroid use in Major League Baseball that are relevant to the prosecution’s case in chief, and (ii) questioning by the defense on cross-examination that is within the subject matter of the direct examination.”

Thus, while Johnson may help the prosecution establish that COGR had the authority/jurisdiction to conduct an investigation of steroid use in baseball, it will be up to Barnett to explain (1) why COGR chose to institute this particular investigation and (2) how Clemens’s statements and representations were “material” to any decision of COGR.

So what might Barnett testify to? First, he could explain COGR’s initial decision to hold hearings on steroid use in professional sports in 2005. Those hearings were intended in part to educate the public regarding steroid use and to spur the professional sports leagues, particularly Major League Baseball, to take stronger action against the use of these drugs by their athletes. While one might debate whether those purposes in themselves would be sufficient to justify the exercise of the congressional power of investigation, the 2005 hearings would seem to have a reasonable nexus to potential legislative activity. For example, during the 2005 hearings, Waxman pronounced himself “intrigued with the idea of one Federal policy that applies to all sports and all levels of competition from high school to the pros and that provides a strong disincentive to using steroids.” Moreover, there were two bills introduced in the House in 2005 to address the issue of steroids in sports.

Second, Barnett might explain Waxman’s decision to hold hearings in 2008 to focus on the Mitchell Report and whether certain individuals, including Clemens, had been truthful in denying steroid use to former Senator Mitchell’s investigators. According to a previous COGR filing in this case, these hearings were held “to investigate whether the Mitchell Report was accurate and credible, whether Major League Baseball would implement Mr. Mitchell’s recommendations, and whether Congress needed to legislate in this area.”

This may be a harder sell. If the purpose of COGR’s 2008 investigation were really to follow up on the Mitchell Report and the earlier 2005 hearings, for example, one wonders why COGR’s oversight plan for the 110th Congress does not appear to express any intent to follow up in these areas. Moreover, even if there was a legislative purpose underlying the 2008 hearings, Barnett will need to explain how Clemens’s testimony was “material” to a committee decision related to that purpose.

It should be noted that Barnett’s direct testimony, according to House Counsel, will be limited to “matters related to formal, public Committee investigatory activities,” but will not include internal and confidential communications. It would seem to be somewhat difficult for Barnett to testify regarding “materiality” without disclosing information regarding the committee’s internal communications and decision-making processes since, by definition, “materiality” requires the jury to make a determination about whether Clemens’s statements influenced or had the capacity to influence those processes.

Finally, it is noteworthy that the prosecutors are not calling any current or former members of Congress as witnesses. These are presumably the witnesses who would be in the best position to testify both about whether COGR was engaged in the “due and proper exercise of the power of inquiry” and whether Clemens’s statements were “material.” Particularly in light of the public statements made by COGR members at the time of the 2008 hearings (calling into question whether the hearing was in fact a legitimate legislative exercise), the absence of any Members as witnesses could hurt the prosecution.

What Must the Clemens Prosecutors Prove About Congress?

AP notes that “Prospective jurors screened Thursday for the Roger Clemens perjury trial were more critical of Congress for spending time investigating drugs in baseball than they were of the star pitcher on trial for lying to lawmakers about ever using them.”  Having watched some of the jury selection yesterday, I can confirm this observation. One woman, a contracting officer for GSA, voiced her skepticism about Congress’s priorities and made a pointed reference to the lengthy delay in passing this year’s appropriations bills.

One interesting question will be how much of the trial focuses on Congress, rather than Clemens. In order to prove its case, the prosecution has to establish certain facts regarding the congressional proceedings in which Clemens allegedly made false statements.

The parties agree that for five of the six counts against Clemens (three for false statements, two for perjury), the government must prove that Clemens’s statements were “material.” This means that they “had a tendency to influence” or were “capable of influencing” a decision of the House Committee on Oversight and Government Reform (“COGR”). Thus, the prosecution must prove beyond a reasonable doubt that some decision of COGR was influenced or could have been influenced by these statements.

For the obstruction of Congress charge, the government must establish that COGR was engaged in the “due and proper exercise of the power of inquiry.” The government has not offered any jury instruction on this point, and it appears that the government may expect that this will be inferred from the fact that COGR is a committee of the House and was conducting a proceeding.

Clemens sees it differently. He has offered a jury instruction that explains what constitutes the “due and proper exercise of the power of inquiry.” The instruction states: “The ‘power of inquiry’ is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. A Committee of the United States House of Representatives does not have authority to expose the private affairs of individuals, nor does it have the power to attempt to resolve differences between two individuals by conducting a hearing unrelated to existing or potential legislation. A legitimate investigation must be related to, and in furtherance of, a legitimate legislative activity of Congress.”

In addition, for the false statements counts, the government must prove that the alleged false statement or representation “pertained to a matter within the jurisdiction of the legislative branch.” The government’s proposed instructions say that a matter is “within the jurisdiction of the legislative branch” if COGR “has the power to exercise authority in that matter. In this regard, there is evidence that [COGR] had the power to exercise authority in holding a hearing titled ‘Restoring Faith in America’s Pastime: Evaluating a Major League Baseball’s Efforts to Eradicate Steroid Use.’” This doesn’t quite say that the jury must find that the matter was within the jurisdiction of COGR as a matter of law, but suggests that the jury may infer jurisdiction from COGR’s undisputed status as a congressional committee.

Clemens’s instructions say that a matter is within “the jurisdiction of the legislative branch” if COGR “had the power to exercise its authority as it did in this matter.” It goes on to repeat the admonition that the power of inquiry, though broad, is not unlimited, and does not include exposing private affairs or resolving differences between individuals unrelated to existing or potential legislation.

Finally, Clemens would instruct the jury that the government must prove the oath was taken before a “competent tribunal.” He would further instruct the jury that a “competent tribunal” is one that is acting within the same parameters as previously defined for “the due and proper exercise of the power of inquiry” and “the jurisdiction of the legislative branch.”

Although the perjury statute (18 U.S.C. 1621) requires that the defendant have taken an oath before a “competent tribunal, officer, or person,” the government’s instructions presume that COGR qualifies as a matter of law.

Thus, the parties will argue before Judge Walton regarding exactly what the jury needs to find with regard to Congress and how it should be instructed. But, at a minimum, the prosecution will have to establish materiality for all of the counts besides obstruction. It also seems that the prosecution will have to put on some evidence that COGR had the authority to hold a hearing regarding steroid use in baseball.

How might the government go about establishing these elements? I will look at that in my next post.

The Public Debt Clause and the President’s “Right to Ignore Law”

While I would like to move on from the Public Debt Clause issue, I feel obliged to remark on Katrina vanden Heuvel’s column, entitled “Invoke the 14th — and end the debt standoff,” in the Washington Post today. She writes:

President Obama may find that there is only one course left to avoid a global economic calamity: Invoke Section 4 of the 14th Amendment, which says that “the validity of the public debt of the United States . . . shall not be questioned.” This constitutional option is one that the president alone may exercise.

 If the Aug. 2 deadline arrives and no deal has been made, Obama could use a plain reading of that text to conclude—statutory debt ceiling or not—that he is constitutionally required to order the Treasury to continue paying America’s bills. In that sense, this is no just a constitutional option, it is a constitutional obligation, one that even the Tea Party will have trouble denying.

It is not entirely clear what vanden Heuvel means by the President ordering “the Treasury to continue paying America’s bills.” The debt limit does not prohibit the Treasury from paying creditors or anyone else: it simply bars it from borrowing more money. And, as we have exhaustively discussed, the “plain reading” of the Public Debt Clause in no way establishes that Congress is forbidden from putting a limit on the overall debt of the government.

Let’s put that aside, however, and assume that there is a plausible argument that the debt limit is in fact unconstitutional. Does that mean that the President can disregard it? Ms. vanden Heuvel says yes: “In Freytag v. Commissioner (1991), the Supreme Court held that the president has ‘the power to veto encroaching laws . . . or to disregard them when they are unconstitutional.’” Therefore, she claims, Obama would be on a “strong legal footing” if he were to invoke the Public Debt Clause to disregard the debt limit.

Well, let’s see. The quote from Freytag is from Justice Scalia’s concurrence, not the majority opinion. Even if it were in the majority opinion, it would be dicta, not a holding. And Justice Scalia is referring to laws that encroach on the constitutional powers of the executive (which no one claims that the debt limit does), not all laws. But, in her defense, vanden Heuvel did correctly cite the date of the case.

Giving the President the power to disregard all laws that he thinks are unconstitutional is a pretty big deal. Strangely enough, vanden Huevel does not always seem to have been such a big fan of executive power. In “The Madness of King George,” written a few years back, she expressed rather strong concern about a president’s claimed “right to ignore law.” She quoted approvingly from an ABA panel that wrote: “The President’s constitutional duty is to enforce laws he has signed into being unless and until they are held unconstitutional by the Supreme Court or a subordinate tribunal. The Constitution is not what the President says it is.”

Apparently it is now.


A Further Reply to Professor Balkin

Professor Balkin has replied to my critique of his analysis of the legislative history of the Public Debt Clause. It is a powerful effort, but I think the reader will conclude that its power lies more in the cleverness of its author than the merits of its argument.

At the outset, let me say that Balkin knows way more than I do about the history of the Fourteenth Amendment and its framers, and he employs this knowledge to great rhetorical effect. I am happy to accept all of his observations about the personalities involved and the broader historical context. None of these observations, however, point toward the conclusion that he wishes to reach.

The Wade Proposal. Take, for example, his description of the central importance of Senator Benjamin Wade in the politics of that time. Fair enough, but doesn’t that make the Senate’s failure to adopt Wade’s proposal all the more significant? The Senate didn’t just ignore or overlook Wade’s proposal; it made a deliberate decision to adopt Senator Howard’s proposal instead.

Balkin explains that “Howard accepted Wade’s ideas, discussed them with other Republican leaders, and reshaped them into the official proposal that was later put before the Senate, and subsequently modified by Clark.” But Howard clearly did not accept all of Wade’s ideas, and he “reshaped” Wade’s language into a very different proposal. Balkin gives no account of why these changes were made.

Bear in mind that there is no dispute regarding the core motivation underlying the proposed provision. Republicans feared that readmitted southern states would try in some fashion to disavow Union debts and they wished to forestall such an effort.

The question is how the framers of the Fourteenth Amendment decided to go about addressing this problem. At the broadest level, they might have decided that any obligation of the United States, once assumed by Congress, must continue in perpetuity and could never be altered or amended to the detriment of the beneficiary. One can understand why the framers might have been reluctant to endorse such an approach. For one thing, it would mean that whenever a court decided that an obligation had been “authorized by law,” Congress would be helpless to change it, even if the court’s interpretation was not actually what Congress had in mind.

While Wade’s proposal may or may not have been intended to go that far, the most plausible explanation for the more modest language of Howard’s proposal is that Wade’s colleagues feared that his language could put Congress in a constitutional straitjacket, with implications reaching well beyond the particular evil that they wished to address. If Balkin has a better explanation, he does not share it.

The Clark-Jackson Colloquy. Balkin’s interpretation of the legislative history places inordinate reliance on a single ambiguous exchange between Senators Clark and Johnson. After Clark offered a new version of what would ultimately become Section Four of the Fourteenth Amendment (and proposed to strike a single word of his substitute), Johnson noted, to Clark’s agreement, that “I do not understand that this changes at all the effect of the fourth and fifth sections.”

I don’t want to belabor the point, but it is not clear what Johnson meant by “this.” Balkin says that he must have meant the entirety of Clark’s proposed substitute because Johnson referred to “this” not changing the effect of the “fourth and fifth sections,” which is how the language in question was numbered in the previous draft. If Johnson had meant to refer to the change made by the single word strikeout, he would have more likely referred to “your substitute” or something to that effect.

Balkin’s reading is plausible, and probably correct, but my original point was simply that it was not clear what Johnson meant (or, for that matter, what Clark understood him to mean). It is possible that Johnson used the “fourth and fifth sections” as a shorthand for the entire provision that Clark was proposing, in which case “this” would refer to the single word change. A somewhat awkward phrasing, to be sure, but such things are quite common in verbal exchanges. It seems rather odd to attach greater importance and precision to the words used in this brief colloquy than to those used in the legally operative text of the Public Debt Clause.

If we assume Balkin is right about the meaning of “this,” we must move on to what Johnson meant by “the effect” of Clark’s proposal. Here Balkin pulls off quite a trick. He notes that there was one important difference between Howard’s language, which applied only to Civil War obligations, and Clark’s language, which appears not to be so limited. He thus disregards Johnson’s statement when it would lead to a result he disfavors, but treats it as controlling with respect to other apparent differences between the two proposals. It’s a bit like walking into a party and picking out your friends, if I may borrow a phrase.

Let’s take an example of how this works. If there is one thing that seems clear on the face of the Public Debt Clause, it is that its protections apply to “debts” but not to “obligations.” That’s because the second sentence of Section Four explicitly provides that both Confederate “debts” and “obligations” are illegal and void, while the first sentence protects only the “public debt” of the United States, including Union “debts” incurred in the Civil War. Certainly anyone reading the text of Section Four at the time it was proposed and ratified would have understood this meaning.

If anything, the legislative history of Section Four would seem to confirm that the difference in phrasing was deliberate. Wade’s original proposal, referred to the “public debt of the United States, including all debts and obligations . . . .” Clark’s proposal, which Balkin plausibly suggests was modeled on Wade’s, referred to the “public debt of the United States, authorized by law, including debts . . . .” It seems evident that Clark deliberately dropped the reference to “obligations.”

Balkin apparently would have us conclude that Clark dropped “obligations” in the first sentence either inadvertently or because it was redundant. He then would have us believe that Clark retained the word “obligations” (twice) in the second sentence, either inadvertently or for unknown reasons that Clark failed to note at the time. These assumptions, if valid, would not say much for the legislative draftsmanship of the Chairman of the Claims Committee.

And what is the basis for these assumptions? The Clark-Johnson colloquy, of course, which Balkin interprets as meaning that “debts” in Clark’s proposal must be synonymous with “obligations” in Howard’s proposal. (As opposed, for example, to the possibility that Clark decided that “debts” more accurately reflected the intent of the Senate than “obligations”). To state this position should be enough to refute it.

At the end of the day, the most we can infer from the Clark-Johnson colloquy is that these two senators believed that the Clark substitute would achieve the intended effect (or the central intended effect) of the Howard proposal. But this doesn’t tell us what they thought the intended effect was, much less provide a basis for ascribing their views to the rest of the Senate. Still less does it justify disregarding the actual language of the Public Debt Clause, which is the best evidence of what the proposers and ratifiers intended.

Balkin’s Hypothetical. To bolster his broad reading of the Public Debt Clause, Balkin argues that such a  reading is necessary to ensure that the Clause would achieve the objectives of its framers. He illustrates this point with a hypothetical in which a post-Civil War Congress, controlled by Democrats, decides not to invalidate or repudiate Civil War debts (or obligations), but to argue that the country cannot afford to pay them in full. Therefore, he suggests, “they deliberately appropriate less than is necessary to pay the debts as they come due, and they prevent the government from issuing new debt to help pay off existing obligations.”

I would first note that Balkin’s hypothetical needs some clarification. If Congress fails to appropriate money to pay off a particular debt or obligation, then it cannot be paid, even if there is a surplus in the Treasury (at least this is my understanding of the law as it has existed up until the last month or so). In addition, up until 1917 Congress had not delegated any general borrowing authority to the executive, so that each debt issuance had to be specifically approved by Congress. Thus, it would not accurate to say that Congress would “prevent the government from issuing new debt.” Absent specific congressional action, there would be no way for the government to borrow.

Having said this, one wonders what Balkin expects would happen in his hypothetical, even if the Public Debt Clause had the broad meaning he supposes. Presumably Congress would have a constitutional obligation to appropriate money and authorize new debt, but what would happen if the votes were not there to enact these measures?  There would seem to be only two possible answers. The first is that the Public Debt Clause would be effective only to the extent that Congress chose to follow its (implicit) strictures, and the second is that some other entity would be able to enforce it against Congress.

Assuming that the framers of the Fourteenth Amendment considered some hypothetical along the lines proposed by Balkin (and there is no evidence they did), they would have realized that attempting to make the Public Debt Clause broad enough to deal with such eventualities would either be futile (because it would be dependent on the good faith of a future Congress controlled by traitors they despised) or would involve ceding enormous power to the executive and/or judicial branches. As much as they may have wished to ensure that Civil War obligations would be paid, it seems highly doubtful that they would have wanted to do so at the cost of ceding congressional appropriations or borrowing authority to the other branches. This makes it perfectly understandable that they were content to propose the Public Debt Clause in the limited and largely exhortatory form that they did.

Moreover, Balkin’s reading of the Public Debt Clause would not necessarily protect against the gamesmanship of a future Congress. Consider a different hypothetical. Instead of attempting to reduce Civil War obligations, a future Congress chooses to broaden the existing pension system so that it covers everyone, including Confederate veterans. From the perspective of the framers of the Fourteenth Amendment, this might be an even greater outrage than a reduction of Union benefits. Yet Balkin’s interpretation of the Public Debt Clause could not prevent it.

To the contrary, if Balkin were correct, once Congress expanded the pension system, it would be constitutionally impossible for another Congress to undo the expansion. A Congress controlled by Southern Democrats, even for a brief period, would have the power to enact changes that could never be undone, no matter how damaging or malicious they might be.

It is not difficult to understand why the framers of the Fourteenth Amendment would not have wished to establish such a regime.


Public Debt Clause Roundup

There have been a number of Public Debt Clause developments over the last couple of days.

Freakonomics. Michael Abramowicz weighs in with some thoughts on the current debate. Among his interesting observations: if one accepts his broad reading of the Public Debt Clause, it is not only the debt limit that would be unconstitutionally suspect. Any statute that would result in default if left unchecked violates the Clause under this reading. Thus, he says, Medicare would be unconstitutional under this view.

Abramowicz has some kind words for this blog, noting: “Michael Stern has written some thoughtful posts on the other side (here, here, here, and here). One argument that Michael makes that is particularly intriguing is that, if I am correct that a default would violate the Public Debt Clause, who is to say that the appropriate remedy is for the President to ignore the debt limit? After all, it is the combination of the debt limit and our taxation and spending policies that would lead to default. Could the President not unilaterally cut spending or raise taxes instead?”

For this reason he suggests that the President take a “modest approach.” Rather than declaring the debt limit facially unconstitutional, he should declare it unconstitutional only as applied to prevent payment on existing debt. Thus, the President would authorize the Treasury Secretary only to issue new debt to the extent necessary to pay off old debt, rather than to fund general obligations of the government.

I am frankly not sure why this qualifies as a “modest approach.” If one accepts the chain of legal reasoning that leads to the President having either the constitutional authority or obligation to ignore the debt limit, surely that authority or obligation is limited to the need to pay the “public debt,” whatever that might be. Of course, it is possible that the President has the authority, but not the obligation, to pay the public debt, in which case he might decide to pay bondholders but not pay others (say federal retirees) who arguably fall within the same category. Perhaps this is what Abramowicz means.

CNN Money. Among other things, this article indicates that Secretary Geithner is starting to cite the Public Debt Clause, suggesting that the administration could be considering declaring the debt limit unconstitutional. It also cites this blog, noting that any such action “could run counter to Congress’ constitutional role”: “Just because the Constitution directs the president to ‘safeguard the national debt’ doesn’t mean he can go ‘snatching the power of the purse’ from Congress, wrote Michael Stern, who specializes in congressional legal issues, wrote in his blog PointofOrder.com.”

The article also cites Garrett Epps, who is also sounding a bit more cautious about the advisability of using the Public Debt Clause, noting that “ignoring the debt ceiling would and should be at most a last-minute thing, like a tourniquet on a wound, where the choice is between losing a leg and losing a life.”

Hot Air: This post indicates that we can add Senator Schumer to the list of those considering the Public Debt Clause argument. It also raises a significant practical point: “If the goal here is to reassure creditors that the U.S. will never default on its obligations in order to avert a market panic and skyrocketing interest rates, how exactly would a power grab involving an utterly novel constitutional theory achieve that? Does a bitter court battle, with the legality of payments issued on Obama’s unilateral order hanging in the balance, sound like a smart way to put investors at ease?”

Balkinization: Jack Balkin has a rebuttal to my post of yesterday. I will work on surrebuttal tomorrow.


“Threatening Default”: A Response to Professor Balkin

There is a plethora of Public Debt Clause news, but let’s begin with Professor Jack Balkin’s analysis of the Clause’s legislative history. Balkin contends that the key part of that history is the proposal made by Senator Benjamin Wade to insert the following language into the draft of the Fourteenth Amendment: “The public debt of the United States, including all debts or obligations which have been or may hereafter be incurred in suppressing the insurrection or in carrying on war in defense of the Union, or for payment of bounties or pensions incident to such war and provided for by law, shall be inviolable.”

Wade explained that his proposal “puts the debt incurred in the civil war on our part under the guardianship of the Constitution of the United States, so that Congress cannot repudiate it.” (emphasis added) He further noted that this “will give great confidence to capitalists and will be of incalculable pecuniary benefit to the United States, for I have no doubt that every man who has property in the public funds will feel safer when he sees that the national debt is withdrawn from the power of a Congress to repudiate it and placed under the guardianship of the Constitution than he would feel if it were left at loose ends and subject to the varying majorities which may arise in Congress.” (emphasis added) Finally, he stated that his “amendment goes further, and secures the pensioners of the country [by putting] the pensions of our soldiers and their widows and children under the guardianship of the United States. They ought to be there, along with your public debt.”

Balkin argues that “[i]f Wade’s speech offers the central rationale for Section Four, the goal was to remove threats of default on federal debt from partisan struggle.” He concludes that the Public Debt Clause was placed in the Constitution to remove the “threat of defaulting on government obligations” as a weapon in “ordinary politics.”

What’s wrong with this analysis? To begin, Wade’s proposal was not the version of the Public Debt Clause that was actually proposed and ratified. In fact, it wasn’t even approved by the Senate. Instead, the Senate adopted Senator Jacob Howard’s proposal, which stated: “The obligations of the United States, incurred in supporting insurrection, or in defense of the Union, or for payment of bounties or pensions incident thereto, shall remain inviolate.”

There is no direct evidence as to why the Senate chose to adopt Howard’s version, rather than Wade’s. It seems a reasonable surmise, however, that the Senate was uncomfortable with the implication, reflected in both Wade’s proposed language and his explanation thereof, that it would be making a dramatic change in the legal status of the public debt. Even Howard’s phrase “remain inviolate” implies a more modest intent to preserve the current legal status of Civil War obligations, rather than to give them constitutional protection which did not previously exist.

The final version of the Public Debt Clause, of course, is significantly different from Howard’s proposal in that it applies to all “public debt of the United States” and is not focused solely on the Civil War. However, it is also significantly different from Wade’s proposal, a fact that Balkin largely ignores.

First, the Public Debt Clause refers only to “debt,” not to “obligations,” while Wade’s proposal did the reverse. As I have noted before, it seems clear that this was intentional and that the framers decided not to include “obligations” within the scope of the Clause. Thus, whatever protection the Clause affords, it applies only to “debt” and not to “obligations.”

An even more significant difference is that while Wade said that the public debt would be “inviolable,” the Public Debt Clause says only that the “validity” of the public debt “shall not be questioned.” It seems highly unlikely that this peculiar phrase was chosen to be synonymous with either Wade’s or Howard’s proposal.

So why was it chosen? Again, we have to engage in a degree of surmise. The language of the Clause directly addresses the evil the framers feared—namely an attempt to declare portions of the public debt (particularly portions related to the Civil War) to be invalid. But this result would have been achieved by Wade’s or Howard’s language as well.

It seems to me that the most likely explanation is that the Senate did not intend to alter the degree of legal protection that the public debt previously enjoyed, but was not of one mind regarding what that protection was. It therefore simply declared that all public debt that was valid (i.e., “authorized by law”) would remain valid. This explanation involves a degree of speculation, but it is more consistent with the actual language of the Clause, as well as the Senate’s previous decision to reject Wade’s proposal, than any other that I have heard so far.

Balkin argues, however, that we should read the Public Debt Clause as meaning the same thing as Wade’s proposal. His basis for this is a colloquy between Senator Clark, who offered the near-final version of the Public Debt Clause, and Senator Johnson. Johnson stated “I do not understand that this changes at all the effect of the fourth and fifth sections. The result is the same.” Clark responded: “The result is the same.”

With all due respect, this argument gives the use of legislative history a bad name. In the first place, it is not even clear that Johnson was referring to the entirety of the language offered by Clark, as opposed to a change that Clark had just made to strike a single word from the language, which Clark stated “does not add anything to its force.”

More importantly, however, even if Johnson meant that he saw no difference between “the result” of Clark’s language and that of the prior draft, he was obviously referring to Howard’s language, not to Wade’s. It would be far-fetched to conclude that Johnson was commenting on Wade’s proposal, which was not the then-current language before the Senate (and indeed had never been adopted by the Senate). It would border on the absurd to conclude that “the result” referred to by Johnson was the result advocated by Wade in supporting a proposal not adopted by the Senate.

Finally, regardless of what Johnson meant, it is quite a stretch to conclude that the Public Debt Clause should be read as meaning, not what it says, but what a single senator said that a proposal with very different language should be read as meaning. It’s enough to give one a Justice Scalia-like attitude toward legislative history.

But even if we forget all that, and accept Balkin’s view that “Wade’s speech offers the central rationale for Section Four,” I have a hard time making the jump from Wade’s speech to Balkin’s interpretation thereof. Wade said that his language would prevent Congress from repudiating the debt.  Balkin says that it was intended to prevent Congress from making a “threat of default on government obligations.” This is not the same thing at all.

Now I am not sure what Balkin means by “threatening default.” Was Secretary Geithner “threatening default” when he sent letters to Congress asserting that default would result unless Congress raised the debt limit? Did then-Senator Obama “threaten default” when he voted against raising the debt limit?

So let’s review. The Public Debt Clause prohibits questioning the validity of the public debt. As far as I know, no one is questioning the validity of the public debt. Senator Wade said that Congress should be prohibited from repudiating the debt. As far as I know, no one is proposing to repudiate the public debt. Professor Balkin says that Wade should be interpreted as meaning that the Public Debt Clause should be interpreted as meaning that no one should threaten default on the public debt. I don’t think that anyone is doing that either, unless “threatening default” means “refusing to do what someone else says is necessary in order to avoid default.”

In which case, everyone is threatening default.