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A Cert-Worthy Speech or Debate Case

In United States v. Renzi, handed down yesterday, the Ninth Circuit definitively rejected the Speech or Debate arguments advanced by the former congressman. I will have more to say about this decision in coming days (for previous posts on the Renzi matter, see here, here and here).

For now I would just observe that the Ninth Circuit’s opinion expressly rejects the D.C. Circuit’s holding in United States v. Rayburn House Office Bldg., 497 F.3d 654 (D.C. Cir. 2007) that the Speech or Debate Clause embodies a non-disclosure privilege precluding law enforcement officials from obtaining or reviewing evidence of “legislative acts” in connection with an investigation of Members of Congress.  The Ninth Circuit panel stated that we “disagree with both Rayburn’s premise and its effect and thus decline to adopt its rationale.”

The Rayburn court held that a search of congressional offices would violate the Speech or Debate Clause unless there was a procedure to screen out documents of a legislative nature before the remaining materials were reviewed by prosecutors or other law enforcement officials. The Renzi court not only rejects the need for pre-screening of legislative materials before executing a search warrant or wiretap, it indicates that documentary evidence of legislative acts can be subpoenaed directly from Members of Congress. The Renzi opinion is thus much more favorable from that standpoint of prosecutors than is the Rayburn opinion.

The government unsuccessfully sought cert in the Rayburn case, arguing that the issue in that case was one of “extraordinary importance.” Now that there is a clear circuit split, the chances that the Supreme Court will grant cert are much higher. Since the law of the D.C. Circuit is much more important in this context than that of other circuits, I imagine that the government will likely support a grant of certiorari in Renzi.

There is a strong likelihood that the Supreme Court will soon be hearing the first important Speech or Debate case in thirty years.

Update: over at Volokh Conspiracy, Jonathan Adler also thinks Supreme Court review is a distinct possibility. So does Rick Hasen at Election Law Blog.

 

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Resigned to Distraction

As I have discussed before, there is a theory, advanced by Professor Josh Chafetz, that Members of Congress should not be able to resign as of right, but should require permission of the House before doing so.  As a matter of constitutional law, Chafetz contends that the Framers expected that Members of the House, like Members of Parliament, would require permission of the body before resigning their seats (he believes that the Framers intended for Senators to be able to resign as of right). As a matter of republican theory, he argues that it is wrong to treat a congressional seat as if it were an ordinary job that can be left for reasons of personal advantage or convenience.

I find the second part of Chafetz’s argument the more persuasive. It does seem wrong for Representatives to abandon their positions as a mater of personal convenience, such as when they are trying to escape investigation or punishment for ethics violations. This is true of Senators as well- a particularly egregious example was Senator John Ensign’s resignation the day before his sworn deposition was to be taken by the Special Counsel investigating ethics charges against him.

Then there is the case of Representative Anthony Weiner, who resigned from Congress today. In Weiner’s case, one cannot say that he resigned to escape investigation or punishment. Rather he resigned because of pressure from the Washington political class, particularly his party’s leadership, which wanted to escape its own punishment in the form of constant media questions about Weiner’s sordid tweeting. It was generally agreed that Weiner’s presence in Congress was a “distraction,” i.e., an inconvenience to Weiner’s colleagues.

The debate over whether Weiner should resign focused on whether his misdeeds merited such “punishment.” But this was the wrong question. Weiner may have deserved to lose his job, although it should be noted that his conduct, while perhaps warranting sanctions from the Ethics Committee, would certainly not have resulted in his being expelled from the House. But lost in this discussion were Weiner’s constituents, who are supposed to be the real parties in interest here. His resignation means that they will be left without representation in Congress for several months, and will have to undergo the inconvenience and expense of a special election. There is no reason to believe that this is in their interests, or that they favor this outcome.

It seems to me that the most appropriate resolution of Weiner’s situation would have been for him to remain in Congress, keep a low profile (so to speak) and accept gracefully whatever punishment the Ethics Committee imposed upon him. For Weiner, concentrating on doing the actual work of a congressman rather than running his mouth on cable tv might have been punishment enough. But this outcome would not have been achieved even if his resignation required the permission of the House—his colleagues would have been only too happy to grant him permission to leave.

As an alternative, Chafetz suggests that Weiner could resign and then run in the special election. In this way, he argues, Weiner’s constituents would have the last word on who should represent them. He points to historical examples where Members were returned to office after resigning or being expelled, including Preston Brooks, a pro-slavery representative from South Carolina, who resigned (and was promptly re-elected) in 1856 after brutally caning abolitionist Senator Charles Sumner.

The problem is that Weiner’s situation is rather different than most of these historical examples. Although it appears that Weiner’s constituents would have preferred that he stay in Congress, it seems doubtful that they would want him to resign and promptly run for re-election. In returning him to Congress, Brooks’s constituents were sending a message, however reprehensible, about matters of public importance. There is no analogous public interest in a special election framed as a referendum on Weiner’s conduct.

In the end, therefore, there was probably no practical alternative to Weiner’s resignation. It also seems unlikely that the House (or Senate) will adopt a rule restricting resignations. There is, however, something that they could do to address the specific situation of Members who resign while facing ethics charges. There is no constitutional reason why investigations of these Members could not continue after their departure (and indeed there is precedent for disciplining former Members). This would deter some resignations of convenience, at least.

 

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How is Kucinich v. Obama Different than Campbell v. Clinton?

In a federal complaint filed today, a bipartisan group of Congressmen (led by Representative Dennis Kucinich) seeks “injunctive and declaratory relief to protect the Plaintiffs and the country from a stated policy of Defendant Barack Obama, President of the United States, whereby a president may unilaterally go to war in Libya and other countries without the declaration of war from Congress required by Article I, Section 8, Clause II of the U.S. Constitution.” The plaintiffs allege that the military action in Libya violates both the Constitution and the War Powers Resolution. They also contend that the administration has illegally funded the war by using monies appropriated for other purposes in violation of the Anti-Deficiency Act.

Leaving aside the merits, it is hard to see how the plaintiffs can hope to surmount the judicial barriers erected to keep such claims from being heard in court. In Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000), the court held that a group of Members of Congress (including Kucinich) lacked standing to bring virtually identical constitutional and statutory claims in connection with President Clinton’s military campaign in Yugoslavia. Relying on Raines v. Byrd, 521 U.S. 811 (1997), the court held that the plaintiffs could not seek judicial relief because there were legislative remedies available and their injury was caused by Congress’s failure to adopt those remedies.

In paragraph 165 of today’s complaint, the plaintiffs “acknowledge that standing of members has been curtailed in prior judicial opinions, but they believe that these decisions allow for an exception for these claims and that members of Congress must have the ability to seek judicial review in this context.”

They do not explain what “exception” they are relying on, but the language in Campbell is directly applicable to the current situation:

In this case, Congress certainly could have passed a law forbidding the use of U.S. forces in the Yugoslav campaign; indeed, there was a measure–albeit only a concurrent resolution–introduced to require the President to withdraw U.S. troops. Unfortunately, however, for those congressmen who, like appellants, desired an end to U.S. involvement in Yugoslavia, this measure was defeated by a 139 to 290 vote. Of course, Congress always retains appropriations authority and could have cut off funds for the American role in the conflict. Again there was an effort to do so but it failed; appropriations were authorized. And there always remains the possibility of impeachment should a President act in disregard of Congress’ authority on these matters.

Appellants’ constitutional claim stands on no firmer footing. Appellants argue that the War Powers Clause of the Constitution proscribes a President from using military force except as is necessary to repel a sudden attack. But they also argue that the WPR “implements” or channels congressional authority under the Constitution. It may well be then that since we have determined that appellants lack standing to enforce the WPR there is nothing left of their constitutional claim. Assuming, however, that appellants’ constitutional claim should be considered separately, the same logic dictates they do not have standing to bring such a challenge. That is to say Congress has a broad range of legislative authority it can use to stop a President’s war making, see generally John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167 (1996), and therefore under Raines congressmen may not challenge the President’s war-making powers in federal court.

As in Campbell, the plaintiffs challenging the Libyan operation have legislative remedies available—Congress could pass a resolution requiring withdrawal, cut off appropriations or even begin impeachment proceedings. As of yet, however, the House alone has passed a resolution forbidding ground troops in Libya, but not otherwise objecting to the operation. I just don’t see how the plaintiffs can distinguish their case from Campbell.

Neither does Jack Goldsmith.

 

 

 

 

 

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“This is Not a Love Making Process”

So explained Charles Tiefer, former Solicitor and Deputy General Counsel to the House and former Assistant Senate Legal Counsel, speaking at a hearing of the House Committee on Oversight and Government Reform yesterday. Tiefer was not talking about the latest congressional sex scandal, but advocating for an aggressive congressional posture when the executive branch withholds information sought by a committee in the course of conducting oversight.

Tiefer was joined on the panel by Mort Rosenberg, Lou Fisher and Todd Tatelman. I would explain who these guys are, but you probably already know, or else you would have stopped reading after learning that this post is not Weiner-related.

The panel ably laid out the constitutional and historical basis for congressional oversight of the executive, including the House’s 1792 decision to appoint a special committee to investigate General Arthur St. Clair’s failed military operation against Indian tribes (referenced in my last post). They were speaking in the context of the Justice Department’s failure to comply with a congressional subpoena for documents related to  “Operation Fast and Furious,” an ATF weapons sting that appears to have gone about as well as General St. Clair’s expedition. Most of the testimony, however, did not focus on the specifics of the particular information dispute, but on numerous historical examples of executive branch recalcitrance in the face of congressional oversight, and the need for persistence in overcoming these types of objections.

The hearing and/or written testimony is well worth reviewing by anyone interested in congressional oversight. The witnesses are certainly among the foremost experts on the subject. As Chairman Issa aptly concluded, “we haven’t brought this much intellectual capital to a hearing in a very, very long time.”

 

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Gang Territory: Improving Congressional Oversight of Intelligence

In the most recent edition of the Harvard Journal of Law and Public Policy, Vicki Divoll (former counsel to the Senate Select Committee on Intelligence) argues for what she terms the “Full Access Doctrine”  (FAD). That doctrine would provide that  “under the Constitution, Congress is entitled to seek and receive any information from the executive branch that it needs to carry out its core responsibilities to make laws, appropriate funds, and investigate all matters relating to the intelligence functions of our government.” The executive branch, she contends, has no right to withhold any information from Congress, apart from a narrow category of presidential communications protected under United States v. Nixon, 418 U.S. 683 (1974).

Divoll writes in the context of congressional oversight of the intelligence community, and she makes clear that she is dissatisfied with Congress’s ability to get information needed for such oversight. Specifically, she decries the process by which the executive will brief certain sensitive intelligence matters only to the “Gang of Four” (the chairs and ranking members of the two intelligence committees).

Divoll criticizes the restricted briefings as “meaningless access” because they do not assist Congress in carrying out its Article I responsibilities. She points to the briefings received by the Gang of Four on enhanced interrogation techniques during the Bush Administration. Although the briefings were later cited as evidence that the recipients, including Representative Nancy Pelosi, had implicitly sanctioned waterboarding and other controversial practices, Divoll argues that there was little that the Gang of Four could have done with the information. She notes that they “receive nothing in writing, are told not to take notes, often have no staff assistance, and cannot discuss the material with anyone but the other three Gang of Four members.” In short, the restricted briefing “serves to give the executive branch a scapegoat if a controversial program becomes public, but it provides absolutely nothing to assist Congress in the performance of its lawmaking, appropriations and oversight duties.”

Divoll’s solution to this problem is for Congress to pass legislation establishing new rules governing congressional access to intelligence. Although she does not spell out the details, the legislation would be “based on the constitutional principles that Congress is entitled to demand anything it wants to serve its proper duties, and the President is required to provide it.” While Congress might choose not to receive some types of information (particularly details of covert actions or similar ongoing operations), the President would not have the discretion to withhold information or to provide it only to a select group of Members.

Divoll’s frustration with the current oversight process is understandable, but her proposal misses the mark, IMHO, in several respects. First, it should be noted that she significantly overstates the extent to which FAD represents established law. Certainly it has never been regarded as the law by the executive branch. It was George Washington who first enunciated the authority of the President to withhold from Congress information that would “injure the public,” following the unanimous recommendation of a 1792 cabinet meeting that included Alexander Hamilton, Edmund Randolph and Thomas Jefferson. Since that time, presidents have often asserted the authority to withhold information from Congress for a variety of reasons, including national security. See, e.g., Mark Rozell, Executive Privilege: The Dilemma of Secrecy and Democratic Accountability 32-53 (1994). No president has ever endorsed FAD or anything like it.

Nor has the judicial branch endorsed the doctrine. Divoll primarily relies on Nixon and United States v. AT&T, 567 F.2d 121 (D.C. Cir. 1977), but neither supports her position. Nixon involved a criminal, not a  congressional, subpoena, and it did not suggest that the executive lacked authority to withhold national security information. The Court suggested, in fact, that the outcome might have been different if national security were involved, noting that Nixon “does not place his claim of privilege on the ground they are military or diplomatic secrets. As to these areas of Art. II duties, the courts have traditionally shown the utmost deference to Presidential responsibilities.”

United States v. AT&T did involve a congressional attempt to access national security information (evidence regarding potential abuses of executive branch wiretapping). The court, however, declined to resolve the competing constitutional claims of the executive and legislative branches, instead attempting to steer the parties toward a negotiated settlement. The court’s dicta suggests that it rejected the executive’s claim of absolute authority to withhold national security information, but also that it rejected the assertion of an absolute legislative right to access such information (“We have not accepted the contention that the executive determination that national security may be involved is conclusive and not subject to any further inquiry, nor have we accepted the rival claim that Congressional right of access to documents for legislative purposes is at any time absolute.”). Like Mark Rozell, the court appears to favor an intermediate approach that would weigh the competing interests of the executive and legislative branches with respect to a particular dispute.

Thus, neither the executive nor judicial branches have endorsed FAD. But even if one thinks that Divoll’s view of the law is the correct one, it is hard to see how new legislation would advance the ball. Congress, as she notes, was unwilling to stand up to the Obama administration over relatively minor changes to the law governing covert action notifications. There would seem to be little chance the Congress would be able to enact a far more ambitious statute along the lines she proposes. And even if such a law were enacted, there is no guarantee that the executive would obey it. (See the War Powers Act).

Yet new legislation is not necessary to address the problem of restricted briefings. Congress already has the power to share the information in these briefings with all the members of the intelligence committees. As far as I have been able to determine, there is nothing in law or congressional rules now that would prevent any member of the Gang of Four from sharing the contents of a restricted briefing with their colleagues on the intelligence committees.

To make the matter clear and to put the executive branch on notice, the House and Senate should each adopt a rule that allows the Gang of Four to further disseminate the contents of a restricted briefing within the intelligence committees. The rule could provide for notice to the President before such dissemination takes place, which would give the executive branch an opportunity to state any objections it may have. In cases where the President objected, the rule might require that the chair and ranking member agree to overrule the objection (or a vote of the entire committee might be required under some circumstances).

These types of procedures make sense because there are situations in which it is preferable that sensitive information be as tightly contained as possible. It may be true, as Divoll suggests, that the tendency of the intelligence committees to leak information has been overstated, but it cannot be seriously disputed that there are risks involved in sharing information with all members of the intelligence committees. There have been cases in which members of these committees have released sensitive information, and common sense suggests that Members of Congress are more likely to release information inadvertently than are career intelligence officials.

The major difference between Divoll’s approach and mine is that I would put the burden on the members of the Gang of Four to determine when further dissemination is required. By making it clear that the Gang of Four has the power to seek further dissemination of restricted briefings, my proposal would entail greater responsibility and political risk on their part. Just as there may be a tendency for the executive to use restricted briefings as a means of scapegoating the recipients, so there may be a tendency for the recipients to avoid any accountability for the information they receive. But if the intelligence committees wish to be full partners in the conduct of U.S. intelligence activities, they must be prepared to accept a degree of responsibility as well.

 

 

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Absences from the House

It was announced yesterday that Representative Anthony Weiner had  “departed this morning to seek professional treatment to focus on becoming a better husband and healthier person.” His spokesperson stated that the congressman would request “a short leave of absence from the House” in this connection.  This request implicates two legal provisions.

House Rule III(1) provides that “[e]very Member shall be present within the Hall of the House during its sittings, unless excused or necessarily prevented . . . .”

Deschler’s Precedents explains the procedure: “Although requests for leaves may be presented orally from the floor, they are properly presented by filing with the Clerk the printed form which is made available at the desk of the Sergeant at Arms. The requests are normally granted by unanimous consent, although they may be refused. Requests for leaves of absence may be challenged as not being on official business, although in current practice Members do not challenge the good faith of others in asking leave.”

Normally, therefore, Weiner’s request for a leave of action would be granted without question; whether or not the circumstances of his request will cause another Member to object remains to be seen.

A more thorny issue, however, may arise under Title II, section 39, which provides: “The Chief Administrative Officer of the House of Representatives (upon certification by the Clerk of the House of Representatives) shall deduct from the monthly payments (or other periodic payments authorized by law) of each Member or Delegate the amount of his salary for each day that he has been absent from the House, unless such Member or Delegate assigns as the reason for such absence the sickness of himself or of some member of his family.”

The House has not exactly been scrupulous in observing this legal provision, preferring instead to ignore it on the grounds that, well, “its general application is not practical under modern conditions.” So states the Parliamentarian’s Note to House Rule III. One might think that the solution to this problem would be to repeal or amend the law, rather than giving impression that the House can’t be bothered with the laws it passes. But that’s just me.

Anyway, we shall see if someone raises the question of whether Weiner’s absence is due to “sickness” within the meaning of Title II, section 39. Come to think of it, this might be a good issue for the Office of Congressional Ethics.

 

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A Brief Comment on Weiner and the Media

I have been working on a post regarding congressional oversight of intelligence, but it is my solemn duty to drop everything and comment on the ethical troubles of a certain congressman, who unfortunately will not remain nameless.  As reported by the Washington Post: “In an extraordinary reversal at an extraordinary news conference, Rep. Anthony Weiner of New York admitted Monday afternoon that he had repeatedly lied to his constituents and the country in denying that he had sent a lewd picture of himself to a college-age woman on Twitter.”

The Minority Leader has called for an ethics investigation, focusing in particular on whether any government resources were used in connection with the inappropriate tweeting. For his part, the congressman denies any violation of House rules, stressing that he had used a personal blackberry to send the tweets in question. He contends that his misconduct was purely personal and therefore not within the cognizance of the ethics rules.

To the extent that the congressman has an ethics problem, however, it seems more likely to revolve around his interactions with the media than around the underlying conduct. In the first place, it would be difficult to argue the congressman’s press conferences or media interviews were purely personal in nature. As I have noted before, the courts have found that congressional interviews with the press fall within the scope of official activities, even when the subject matter is personal in nature. See Council on Am Islamic Relations v. Ballenger, 444 F.3d 659 (D.C. Cir. 2006) (“A Member’s ability to do his job as a legislator effectively is tied, as in this case, to the Member’s relationship with the public and in particular his constituents in the Congress.  In other words, there was a clear nexus between the congressman answering a reporter’s question about the congressman’s personal life and the congressman’s ability to carry out his representative responsibilities effectively.”) In addition, it seems highly likely that the congressman used staffers and other government resources in arranging and preparing for the various interviews that he gave regarding this subject.

I am not aware of any precedent on whether lying to the media constitutes a violation of House Rules. One can imagine that the Ethics Committee would be reluctant to establish such a precedent. However, in this case it may be fairly observed that the congressman did a good deal more than merely respond untruthfully to press inquiries.  He not only put out a false cover story, in which he claimed that his account had been “hacked” (likely a federal crime), but he seems to have actively sought opportunities to propagate this story, to issue false denials, and to attack the motives and integrity of reporters who questioned his statements. See, for example, the congressman’s interactions with CNN and ABC.

Any ethics case against the congressman would almost certainly be premised on Clause I of House Rule XXIII, which provides that a “Member, Delegate, Resident Commissioner, officer, or employee of the House shall behave at all times in a manner that shall reflect creditably on the House.” Applying this vague standard is notoriously difficult. In this case, though, it is not hard to see how the Ethics Committee might conclude that the congressman’s media campaign failed to “reflect creditably on the House.”

 

 

 

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Snatching the Power of the Purse

In prior posts (see here, here and here), I argued that Garrett Epps (and, to a lesser extent, Michael Abramowicz) had adopted an overly broad interpretation of the Public Debt Clause and that this interpretation, even if accepted, could not justify invalidating the debt limit. These errors are minor, however, compared to Epps’s proposal that the President enforce the Public Debt Clause by declaring the debt limit unconstitutional and ordering the Treasury Secretary to borrow money without congressional authorization.

Epps defends this position on the grounds that the President takes an oath to uphold the Constitution and is therefore obligated to ensure compliance with the “absolute command of our nation’s fundamental law.” Although the President’s action would violate the debt limit statute, “no congressional statute can command or permit our government to violate the Constitution.”

At first blush, this sounds very much like the theories advanced by John Yoo and other advocates of executive power. A statute which unconstitutionally constrains executive power is void and therefore can be ignored.

Epps himself makes this analogy, arguing: “during the weeks after September 11, [Yoo] breezily wrote that ‘the constitutional structure requires that any ambiguities in the allocation of a power that is executive in nature- such as the power to conduct military hostilities- must be resolved in favor of the executive branch.'” Epps contends that the same rationale should apply to the debt limit: “Surely the power to safeguard the national credit is ‘executive in nature,’ too. It is commanded by the Constitution, and it concerns the national interest as fully as does military action.” Thus, Yoo’s logic should equally support a President’s decision to ignore the debt limit (“sauce for the Bush goose, an administration lawyer might argue, should be sauce for the Obama gander.”).

But Epps’s theory goes well beyond anything that Yoo has argued. Yoo contends that a statute which conflicts with presidential powers, particularly in the national security, may be invalid. But even under Epps’s reading, the Public Debt Clause does not give the President any power. It merely imposes a constitutional duty, which the President is obligated to fulfill as a consequence of his oath to uphold the Constitution. However, the President’s duty to safeguard the national debt no more enables him to assume Congress’s power of the purse than it would enable him to assume the judicial power when (in his opinion) the Supreme Court acts in an unconstitutional manner.

Moreover, even in the national security area, where the President unquestionably has wide-ranging powers, it is recognized that he must rely on Congress for funding. Even the most die-hard proponents of executive power do not question this as a general matter. See, e.g., John Yoo, Crisis and Command 196-97 (2009) (explaining how Congress used its power of the purse to curtail President Polk’s maximalist demands during the Mexican-American War, thereby “demonstrat[ing] the checks that Congress always has available against the executive, even at the height of his wartime powers.”); id. 342 (noting that President’s national security powers do not give him authority over the funding of the military) . Indeed, many observers believe that the power of the purse is the only effective check, short of impeachment, that Congress still has to rein in the executive branch.

It is ironic that Epps, of all people, would now seek to transfer this quintessential congressional power to the President. Just a few years ago, Epps warned of the danger of the “runaway presidency,” fearing that “there are no means by which a president can be reined in politically during his term.” Because of this problem, he explained, “runaway presidents have at times committed the country to courses of action that the voters never approved- or ones they even rejected.”

Epps was particularly concerned about the situation where “a president with little or no mandate uses the office to further a surprising, obscure, or discredited political agenda.” He went on to explain that “[t]he most egregious case arises when a president’s policy and leadership have been repudiated by the voters, either by a defeat for reelection or by a sweeping rejection of his congressional allies in a midterm election.”

Sounds a lot like the current situation, does it not? Yet for some reason Epps is no longer concerned about the prospect of a runaway presidency, To the contrary, he is actively promoting a runaway presidency by encouraging the President to assert a power that no president before has ever claimed, the power to borrow money on the credit of the United States.

To be fair to Epps, he seems to have some qualms about his debt limit proposal, allowing that he would prefer that Obama not have to seize this constitutional power. Yet ideas like this can take on a life of their own. Better to quash them now before some lunatic starts claiming that it is treason to “question” the public debt. Oops, too late.

 

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The Debt Limit and the Public Debt Clause

Following up on my prior posts (see here and here), one thing that Epps and Abramowicz agree on is that the debt limit violates the Public Debt Clause. Put another way, whenever the debt limit prevents (or may prevent) the government from repaying the “public debt,” Congress is constitutionally obligated to raise it.

This position appears to be based on a misunderstanding of the debt limit. To understand why, a brief history of the debt limit is necessary. (Sorry).

The Constitution (art. I, sect. 8, cl. 2) gives Congress the power to “borrow Money on the credit of the United States.” In the First Congress there was some question whether this provision allowed any executive participation at all in borrowing, but it was quickly decided that practicalities required Congress to authorize borrowing and to rely on the executive branch to carry it out. See David Currie, The Constitution in Congress: The Federalist Period 1789-1801 73 n.143 (1997).

Prior to 1917, Congress “approved each individual issuance of debt made on the nation’s behalf.” Anita Krishnakumar, In Defense of the Debt Limit Statute, 42 Harv. J. Legis. 136 (2005). This meant that Congress would determine the terms and interest rate of bonds, notes and other securities issued to borrow money on the credit of the United States. There was no need for a debt limit since no borrowing took place without a specific congressional authorization.

In 1917, Congress gave the Secretary of the Treasury statutory authority to borrow money at times of his choosing and expanded his discretion over the terms and conditions of the debt instruments. At the same time, it established the first debt limit, which placed a cap on the Secretary’s overall discretionary borrowing.

The establishment of the debt limit did not expand congressional control over borrowing; to the contrary, it retained one element of congressional control while other aspects were increasingly delegated to the executive branch. In the decades following 1917, Congress continued to set the overall debt limit, which it would periodically raise in response to the executive’s request (although not always by as much as the President or Treasury Secretary wanted).

It was not until the 1960s and 1970s that Congress started to push back against attempts to raise the debt limit. As the size of the federal budget and level of debt became major political issues, raising the debt limit was increasingly controversial. Votes to increase the debt limit periodically failed, and Congress looked to join debt limit increases with measures to restrain future spending.

For example, in late 1985 the debt limit increase was delayed for months past the ostensible deadline as Congress negotiated passage of the Gramm-Rudman-Hollings bill. During this period, the Treasury Secretary avoided default by engaging in a series of financial maneuvers to raise short term cash. After the crisis, Congress expressly gave the Secretary authority to take such actions in future situations where the government was close to reaching the debt limit.

Another significant impasse occurred in 1995, when the failure of Congress and the President to agree on a budget caused substantial delay in raising the limit. The government was again forced to take extraordinary measures to avoid default.

Since then, Congress has voted to raise the debt limit on 14 separate occasions. A number of these measures were controversial, attended by substantial delay and debate, and passed on largely or entirely party-line votes.  See CRS Report, The Debt Limit: History and Recent Increases (Mar. 11,2011).

Because of these types of problems, some observers, like CBO, have proposed repealing the debt limit statute altogether. These proposals, however, were based on policy, not constitutional, grounds. No one (other than Abramowicz and Epps) appears to have ever questioned the constitutionality of the debt limit. Presumably the many Members of Congress, including then-Senator Obama, who have voted against raising the debt limit do not question its constitutionality.

On the other hand, eliminating the debt limit would raise a serious constitutional issue. As Professor Krishnakumar points out (in the above-cited article), repealing the debt limit would effectively relinquish the last vestige of congressional control over borrowing (a power which the Constitution vests in Congress, not the executive).  She argues that “if the debt limit were repealed, and the Treasury Department given permanent, standing authority to incur debt, Congress would abdicate its control over the power to borrow and expand executive branch authority over government borrowing to an extent impermissible in our separation of powers system.”

With this background, we can now analyze the theory that the debt limit violates the Public Debt Clause. Lets suppose a plaintiff (say a bondholder) brings a lawsuit alleging that the government has violated the Clause by bringing into question its ability to pay the public debt. For arguments sake, we will assume that this is a valid legal theory.

The court may agree that the government has violated the Public Debt Clause, but how does it identify the cause of the violation? From a pure causation standpoint, the violation was equally caused by overspending, undertaxation, or the failure to borrow the difference between spending and revenues. Nothing in the Constitution tells the court how to make that choice.

Fashioning a remedy would also present a huge problem. As Abramowicz acknowledges, “[w]hile the courts might issue mandamus ordering the deficit be lowered, congressional defiance of such an order would leave the courts without recourse, since rewriting a budget is a quintessentially legislative task . . . .”

Declaring the debt limit to be unconstitutional might seem like an easy alternative, but it is not. Functionally, it would be no different than ordering the Congress to borrow more money, which would be just as problematic and unenforceable as ordering the Congress to rewrite the budget. Moreover, ordering (or authorizing) the executive branch to borrow money would be just as bad, if not worse, from a separation of powers standpoint. The courts could no more do this than to authorize the executive branch to appropriate money, or raise taxes.

In conclusion, I have no doubt that the Congress and (in his legislative capacity) the President have the duty to balance the books of the federal government. Likewise, they have the duty to make sure that the federal government does not borrow more than it can reasonably be expected to repay. I have no problem with characterizing these as constitutional duties, reflected in the Public Debt Clause and pre-existing constitutional provisions. But there is simply nothing in the Constitution that tells the Congress how to reach these required goals, or authorizes any other entity (except state legislatures under Article V) to force a particular solution on it.

The Constitution does have relevance to at least one aspect of a debt crisis, however. It would seem that in the event that the debt limit is not raised, the Constitution permits and perhaps requires that constitutional debts be privileged over non-constitutional ones. Of course, as we have seen, what qualifies as a constitutional debt itself may be a matter of dispute. But there is at least no doubt that money owed to bondholders and other creditors falls in that category.

 

 

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The Public Debt Clause: Back from the Dead?

Michael Abramowicz’s youthful “thought experiment” has morphed into a serious (well half-serious) policy proposal in this recent article by law professor Garrett Epps.  The essence of Epps’s claim (presented as an imagined speech by President Obama) is that debt limit is unconstitutional under the Public Debt Clause. Epps further suggests that the President can therefore ignore the debt limit, issue debt instruments on his own authority, and use the funds to continue the government’s spending at currently authorized levels.

There are several important differences between Abramowicz’s position and Epps’s. To begin with, Abramowicz acknowledges the novelty of his position, noting that no plaintiff has ever even attempted to use the Public Debt Clause to challenge the debt limit or any other congressional action that might arguably jeopardize the ability of the United States to repay its debt. Moreover, although he explores the possibility of judicial enforcement of the Public Debt Clause, at the end of the day he concludes that Clause “should be thought of as dead” and explains “why the Supreme Court should not attempt to revive it.”

Abramowicz also explores some of the difficulties would arise if the courts were to try to enforce the Public Debt Clause (or, more precisely, his interpretation thereof). For example, the courts would have to decide which types of obligations fall within the “public debt.” It might be argued that entitlements like Social Security or Medicare fall within the protection of the Clause, but Abramowicz suggests that this might exceed even his own broad interpretation. Because entitlements are not based on voluntary agreements, they are not like either bonds or payments owed to those who have provided goods or services to the federal government.

Moreover, Abramowicz notes that the Supreme Court’s decision in Fleming v. Nestor, 363 U.S. 603 (1960), would stand as a barrier to any attempt to establish a constitutional right to Social Security payments. In Fleming, the Court upheld a statute which retroactively withdrew benefits from aliens deported as Communist sympathizers. The Court noted that Congress had expressly reserved the power to alter, amend or repeal any part of the Social Security Act and found that this provision made explicit what was implicit in the institutional needs of the program, ie, beneficiaries have no vested property right in their benefits. (For more on the right of Congress to change Social Security benefits, see this CRS report). Although the Public Debt Clause was not discussed (not surprisingly, since it would not have occurred to anyone that it related), Abramowicz notes that “it seems intuitively unlikely that the Court would ever uphold Fleming’s interpretation of the Due Process Clause but reach a contrary result on the basis of the Public Debt Clause.”

Finally, if one assumes that the core purpose of the Public Debt Clause is to assure the creditors of the United States of repayment, then a broad interpretation of the “public debt” will tend to be self-defeating. After all, if all of the obligations of the United States have constitutional priority, then none of them do. Or, to borrow a phrase from Abramowicz, protecting entitlements under the Public Debt Clause would transform it “from a brake against fiscal chaos to an accelerator that could push the economy off the fiscal cliff.”

None of these qualifications or nuances appears in Epps’s article. He does not mention Abramowicz, or the fact that he and Abramowicz are evidently the only people to have ever suggested that the Public Debt Clause might require Congress to authorize unlimited borrowing. He asserts, or would have Obama assert, that Social Security is within the scope of the Public Debt Clause, though even Abramowicz does not believe this. Indeed, Epps would seemingly declare all of the government’s spending sacrosanct under the Public Debt Clause, a position that doesn’t appear to be supported by Epps’s own claims about the Clause.

Because the article is framed as a political speech, Epps gives himself literary license to present his argument in the most conclusory and misleading way. The reader is given no clue as to the utter novelty of the legal claims being made. Epps would have Obama declare that “[f]or nearly a century and a half, the absolute language of the Fourteenth Amendment was not even questioned.” Unless this statement is utterly meaningless, it is false. Certainly it is not the case that no one has voted against raising the debt limit. Many have done so, including then-Senator Obama.

These problems, however, are not the worst thing about Epps’s article. We will get to that shortly. But first we will take a closer look at the argument that the debt limit violates the Public Debt Clause.