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 was poor. Fortunately, as one of his former students, I have some experience in trying to follow him while only being able to catch every other word or so.

Rivkin took the position that the United States is “constitutionally incapable of default,” relying on the Public Debt Clause and Perry v. United States, 294 U.S. 330 (1935). As a consequence, he maintained, bond investors should be reassured that there will be no default in the event that the debt ceiling is not raised.

It is important to recognize what Rivkin is not saying here. He is not saying that default is factually impossible. If I am a bond investor (which I am, come to think of it), and Jack Lew decides not to write me a check when my interest payment is due, then there is a default on the bond (at least as I understand the meaning of the term). Lew’s failure to write me a check may be illegal or unconstitutional, but I still don’t have the check, and I can’t deposit the Public Debt Clause in my bank account.

What Rivkin is saying is that I can go to the Court of Claims and get a judgment against the United States in the amount of whatever money I am owed under the bond. But even if that is true, the ability to go to the Court of Claims and get a judgment is worth considerably less than the check from Jack Lew. The former involves time, money, and uncertainty, and if/when I get the judgment, I still don’t have something that I can deposit into my bank account.

Continue reading “The Public Debt Clause and Other Things You Can’t Take to the Bank”

Senate “Official Office” Designations Still a Black Box

Yesterday Roll Call reported on a memorandum issued by the Senate Disbursing Office to guide Senate employees on the considerable intricacies of their health insurance situation. However, with regard to the foundational question of whether any particular employee may continue to receive health insurance through the FEHB or, conversely, must get insurance through the DC Exchange, the memo provides little guidance.

The memo advises:

OPM has stated that the designation of whether an employee is part of a Member’s “official office” is ultimately determined by the Member, unless the Member delegates that designation to the Secretary of the Senate. The Senate Disbursing Office has provided each Member with a form to make “official office” designations regarding personal, committee, and leadership staff. The Disbursing Office will confirm your individual designation status after October 31, 2013 by mail.

This sure sounds as if Senators will have the ability to designate “personal, committee, and leadership staff” as “official office” employees if they so choose. There is nothing in the memo I see to inform the exercise of this discretion or to discourage a Senator from designating all of her personal, committee and leadership staff as “official office” (or, conversely, from designating none).

Now the Roll Call story says:

Leadership staffs and committee staffs are still exempt from the exchanges, as was written into the law (by leadership and committee staffs). It is up to each office, per the Office of Personnel and Management rule stated in the memo, to determine who is qualified for this exemption.

But where does it say that leadership and committee staff are “still exempt from the exchanges”? As far as I can see, it doesn’t say that in the Disbursing Office memo and, as we have discussed, OPM didn’t say that either.

Presumably Roll Call expects that Senators will designate leadership and committee staff as “official office” only if they anticipate the staff will spend some part of the year working in the personal office or on the personal office payroll. But if this is the rule, one would expect to see it appear somewhere in writing. Usually, legal standards are not established by word of mouth or on deep background.

Of course, since Senators have the option of punting (I mean “delegating”) the “official office” designation to the Secretary of the Senate, presumably the Secretary has decided or will decide shortly how she would make the decision. Perhaps this is being communicated to Senators in some private fashion. Maybe it appears in the “official office”  designation form that each Senator has received, a document which is not being shared with Senate employees or the general public. Who knows?

Tillman on the Origination Clause

Seth Barrett Tillman sends the following comments on the Origination Clause:

The Constitution provides:

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

U.S. Const. Art. 1, Sect. 7, Cl. 1.

If the House sends a non-revenue bill to the Senate and the Senate amends the bill, and in the process makes the bill a revenue bill, the bill has become a revenue bill per Senate amendment. But that bill for raising revenue still originated in the House (albeit, it first took its character as a revenue bill via Senate amendment).

The Constitution’s text does not demand that bills for raising revenue originate in the House qua as revenue bills, but only that any bill which has the character of a revenue bill prior to final passage must have originated in the House.

It follows that there is no limit at all in regard to the Senate’s amendment power.

Indeed, the Origination Clause states that the Senate’s power (under Article I, Section 7, Clause 1 to amend revenue bills) is coextensive (“as on other Bills”) with the Senate’s power to amend non-revenue bills (under Article I, Section 7, Clause 2). Unless you are willing to argue that the Senate’s power to amend non-revenue bills per Clause 2 is textually limited, then its follows no such limitation exists under Clause 1. Any other view essentially renders Clause 1’s “as on other Bills” language nugatory. And that cannot be right (at least if you are a textualist).

Also, I think there are good prudential reasons (akin to standing and justiciability) for courts to reject Origination Clause challenges: in other words, strong versions of the enrolled bill rule and a wide interpretation of the Speech & Debate Clause are called for here. Why? In the 18th century, parliamentary journals were quite skeletal. They did not generally include either the full text of bills or the full text of amendments (unless very short). In order to make an Origination Clause challenge, the proponent would have either: (1) to reference modern congressional journals or other congressional documents to establish that the amendment process in the Senate went “too far” in some sense; or (2) to subpoena members of Congress or parliamentary staff (the Clerk, the Secretary, the sergeants-at-arms, the door-keeper, and other staff). That’s a truly bad result.

Why? If you go down path (1), you are punishing the majority for being transparent. Then they will stop being transparent. As to (2), congress members are generally exempt from process. Article I, Section 6, Clause 1. (Perhaps, you could get former members?) As to parliamentary staff – they are exempt (as a constitutional matter) from the Constitution’s Article VI oath. I suggest that the reason for that exemption was to avoid this precise situation – to keep an aggressive judiciary from invading and investigating Congress’ internal procedures. Viz: The enrolled bill rule.

The better interpretation of the Origination Clause is that only House members (i.e., the majority) can make use of the clause during inter-house proceedings. And like other rights, it can be waived, but only by those entitled to assert it.

Heritage Foundation Panel on Recess Appointments

This Thursday, October 10, at noon, the Heritage Foundation will be hosting an event on recess appointments and the case currently pending in the Supreme Court. Senator Mike Lee will deliver opening remarks, followed by a panel discussion by Professor John Yoo and me. Here is the synopsis of the event:

Recess is over, but the President has been playing around with the Recess Appointments Clause. Earlier this year, President Obama’s alleged recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau came under fire. The problem? The Senate was not in recess at the time of the appointments. Three federal appellate courts have struck down various recess appointments as unconstitutional, and the Supreme Court has agreed to hear National Labor Relations Board v. Noel Canning this term.

In light of these controversial appointments, we are left with many questions. What is the role of the Senate when it comes to recess appointments? How did our Founding Fathers intend for the recess appointment power to be used? Can the Senate block the President from making recess appointments through the use of pro forma sessions? How might the justices rule in the Noel Canning case? Please join us as our panel of experts explores these issues.

The link for registering for this free event is here.

Judge Jackson’s “Fast” and Furious Decision

Though it might seem like a distant memory (what with everything else going on), the House’s civil contempt lawsuit against Attorney General Eric Holder still percolates in the courts. The House is investigating “Fast and Furious,” but the resulting litigation is more like “Slow and Cranky.”

On September 30, Judge Amy Berman Jackson issued a long-awaited ruling on the Attorney General’s motion to dismiss the complaint on jurisdictional grounds. Her opinion does not reach the merits of the case (which involves the question of whether the President validly invoked executive privilege over certain internal Justice Department documents subpoenaed by the House Committee on Oversight and Government Reform), but it decisively rejects the Attorney General’s argument that the court lacks the power to decide the case at all.

I will summarize the court’s ruling in another post, but the bottom line is this. The Obama Justice Department made almost exactly the same jurisdictional arguments that the Bush Justice Department made in House Committee on the Judiciary v. Miers, 558 F.Supp.2d 53 (D.D.C. 2008), and they left Judge Jackson every bit as unimpressed as Judge Bates was in Miers.

One interesting point to note in Judge Jackson’s ruling. She emphasizes that the House’s complaint “raises a narrow legal question: can the executive properly assert executive privilege to shield an agency’s deliberative processes when the records in dispute do not reveal advice provided to the President himself or address his core constitutional functions?” (slip op. at 27 n.7). She contrasts this “purely legal question” with the messier function of weighing COGR’s need for the documents it seeks against DOJ’s interest in protecting its internal deliberations. Slip op. at 40-41.

But the Fast and Furious lawsuit is limited to a “purely legal question” only if Judge Jackson decides that question in favor of the House. If she concludes that the President may invoke executive privilege with regard to the documents in question, then it would be necessary for the court to engage in the kind of weighing of interests that raise some of the hallmarks of a political question.

This in turn suggests that Jackson may be leaning toward deciding the merits of the legal question in the House’s favor, which would end the litigation and require DOJ to produce the documents. Alternatively, should she decide that the President did properly invoke executive privilege, she may be inclined to send the parties back to the negotiating table before trying to “wad[e] into the murk” of the political wrangling between the parties.


CAO Fact Sheet on Congressional Health Insurance

The House Chief Administrative Officer has issued this fact sheet regarding federal health insurance available to Members of Congress and those lucky staffers found to be employed in a Member’s “official office.” Following OPM’s guidance, the CAO states:

Members of Congress and congressional administrative staff are best equipped to make the determination as to whether an individual is employed by the “official office” of that member. Designations must be made prior to November 2013 for the coverage year starting January 1, 2014 and October for subsequent plan years.

Needless to say, this statement provides no additional clarity (which is to say no clarity at all) on the question of whether committee and leadership office staff may be designated as employed by the “official office” of a Member.

A couple of other questions occur to me. What happens if a Member fails to make any designation by November? Is the default rule that any staffer not affirmatively designated by a Member by that date automatically remains on the Federal Employee Health Benefit plan?

Also, is there a mechanism by which a staffer can affirmatively challenge a designation by a Member that he or she works in his “official office”? What happens in the case of shared employees who work for more than one Member? Of in the case of a committee staffer who contends that he works for the full committee chair, rather than the subcommittee chair, or vice versa? Or the ranking member rather than the chair?

Eventually the CAO (or someone) is going to have to address these questions.