Month: July 2011

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

From the President’s veto message:

This bill would make it almost inevitable that the Government would default for the first time in our history. This is deeply irresponsible. A default has never happened before, and it should not happen now.

I have repeatedly urged the Congress to pass promptly legislation raising the debt limit for a reasonable period of time to protect the Nation’s creditworthiness and avoid default. Republicans in Congress have acknowledged the need to raised the debt limit [but] [t]his bill would threaten the Nation with default. . . .”

No, the Obama administration has not given me an advance copy of its planned veto should the Congress pass a short-term extension of the debt limit. The language quoted above is from President Clinton’s November 13, 1995 veto of H.R. 2586, which would have provided for a temporary and very short-term (one month) increase in the debt limit during the budget battle of 1995-96. (Incidentally, I learned about this veto from this helpful background report from the Committee for a Responsible Budget).

There are several things to note about this veto message. First, it raises precisely the same issues as have been debated in our current “unprecedented” debt limit crisis. Second, although it uses the same language that has been used to describe the position of the current Congress (“deeply irresponsible” to “threaten the Nation with default”), there is no claim that Congress’s failure to raise the debt limit in accordance with the president’s wishes is unconstitutional.

The message makes no mention of the Public Debt Clause. And there is no trace of a suggestion that the president has the authority to raise the debt limit on his own, notwithstanding the assertion of former President Clinton that this is what he would do if he were in President Obama’s shoes.

One can also ask whether, under Clinton’s theory, his 1995 veto was itself unconstitutional. After all, if the Constitution requires the Congress to raise the debt limit to avoid default, it must be the case that the President is constitutionally obligated to sign the bill that would raise the limit.

Of course, the constitutional arguments against the debt limit have generally relied on a “principle” (as opposed to a specific rule) that seems to turn on subjective judgments about motivation, such as who is acting “irresponsibly,” “dishonestly,” or “dishonorably.” Professor Dworkin, for example, says that the congressional Republicans are acting unconstitutionally because they know that their actions will make “default inevitable.” One wonders whether the same principle would extend to the 1995 bill, which allegedly made default “almost inevitable.”

No doubt the scholars making these arguments could review an Obama veto message and determine that it was constitutional because based on a sincere desire to protect the nation’s creditworthiness. But these scholars would have to concede, as a logical matter, that under their theory it is possible for a presidential veto of a debt limit increase itself to be unconstitutional. And if a president can decide that the Congress is unconstitutionally “threatening default” by failing to raise the debt limit, surely Congress could similarly decide that the president is unconstitutionally doing the same by vetoing such a bill.

What happens then? If the president issues what Congress views as unconstitutional veto, couldn’t Congress contend that the debt limit increase is nonetheless effective? Such a theory could be tested in court.  Those who were harmed by the administration’s failure to borrow money (such as Social Security recipients) would presumably have standing to challenge the alleged constitutional violation.

What a tangled web.

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Has Obama Already “Invoked” the Public Debt Clause?

Jack Balkin says yes. Balkin argues that by telling bondholders that they will get paid regardless of whether the debt limit is raised, the President is implicitly invoking the Public Debt Clause.

I say no (or, rather, not necessarily). One could construe the existing statutory scheme to permit prioritization wholly apart from any constitutional issue. (Indeed, given the executive branch’s normal proclivity to expand its own power, it would be somewhat surprising if it did not do so). This point is illustrated by the GAO’s 1985 opinion referenced in my last post.

Moreover, even if the executive branch were to use the Public Debt Clause or (more appropriately, IMHO) the Perry case to construe congressional silence in favor of prioritization, this is not the same thing as “invoking” the Constitution to override a congressional command. It is perfectly possible to conclude that the Constitution requires Congress to repay bondholders without believing that it gives the President the right to steal the power of the purse.

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Prioritizing Payments if the Debt Limit is Reached

This CRS report from early June discusses a number of legal and policy issues (not including the Public Debt Clause) that would arise should Congress not raise the debt limit. Of particular interest is its discussion of the Treasury Secretary’s authority to prioritize payments once the debt limit is reached:

Some have argued that prioritization of payments can be used by Treasury to avoid a default on federal obligations by paying interest on outstanding debt before other obligations. Treasury officials have maintained that the department lacks formal legal authority to establish priorities to pay obligations, asserting, in effect, that each law obligating funds and authorizing expenditures stands on an equal footing. In other words, Treasury would have to make payments on obligations as they come due. With regard to this view, Treasury recently noted that an attempt to prioritize payments was “unworkable” because adopting a policy that would require certain types of payments taking precedence over other U.S. legal obligations would merely be a “failure by the U.S. to stand by its commitments.”

In contrast to this view, GAO wrote to then-Chairman Bob Packwood of the Senate Finance Committee in 1985 that it was aware of no requirement that Treasury much pay outstanding obligations in the order in which they are received. GAO concluded that “Treasury is free to liquidate obligations in any order it finds will best serve the interests of the United States.” In any case, if Treasury were to prioritize, it is not clear what the priorities might be among the different types of spending.

While the positions of Treasury and GAO may appear at first glance to differ, closer analysis suggests that they merely offer two different interpretations of Congress’s silence with respect to a prioritization system for paying obligations. On the one hand, GAO’s 1985 opinion posits that Congress’s legislative silence simply leaves the determination of payment prioritization to the discretion of the Treasury Department. Conversely, Treasury appears to assert that the lack of specific legislative direction from Congress operates as a legal barrier, effectively preventing it from establishing a prioritization system.

The missing piece of this analysis is the constitutional issue. If one believes, as some do, that the Public Debt Clause prohibits default on the “public debt,” then the President is required to prioritize those payments that fall within that constitutionally protected category. This is Jack Balkin’s conclusion.

Personally, I am skeptical that the Public Debt Clause, of its own force, requires the President to do anything, other than not to repudiate or renounce the public debt (which he would lack the authority to do anyway). However, there is a plausible argument that the constitutional principle recognized in Perry v. United States requires that the public debt be repaid in accordance with the terms on which it was borrowed. This would be an extension of Perry’s reasoning, but a plausible one. If that is the case, then the President would be obligated to interpret congressional silence in accordance with this constitutional principle. At the least, the avoidance of constitutional doubt would seem to counsel for an interpretation of the statute that allows for prioritization.

 

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Can Representative Waters Take the Ethics Committee to Court?

According to this Politico story, “Rep. Maxine Waters (D-Calif.) is threatening to take the House Ethics Committee to federal court if the secretive panel charges her with any violations of House rules.”

This statement appears to reflect a misunderstanding of a letter sent by Stan Brand, Waters’s attorney, to the chairman and ranking member of the Ethics Committee on July 19. Although Brand asserts that “the Committee’s actions in this matter have concluded and that any further action, save from formal acknowledgement of dismissal, is legally precluded and indefensible,” he knows full well that no federal court will grant relief against the Ethics Committee with regard to its ongoing disciplinary proceedings. Thus, his letter does not threaten to “take the Committee to court” in order to have those proceedings enjoined or declared invalid.

Instead, Brand threatens a federal court action with respect to one particular aspect of his grievances against the Committee, namely the alleged “illegal leaking of confidential Committee documents, transcripts, emails and other information to the media to create a misimpression regarding both the strength of the case against [Waters] and the Committee’s ability to proceed with this case.” Brand contends that this conduct (a) is unprotected by Speech or Debate and (b) implicates Waters’s constitutional and statutory rights.

It is certainly true that, under existing case law, there is no necessary constitutional barrier to a federal court action alleging that a member or staffer of the Ethics Committee has leaked information to the media. See Boehner v. McDermott, 483 F.3d 573 (D.C. Cir.), cert. denied, 128 S.Ct. 712 (2007) (upholding civil judgment against member of Congress who leaked an illegally recorded tape recording which had been given to him in his capacity as ranking member of the Ethics Committee). It is, however, not obvious what constitutional or statutory right might give rise to a cause of action for the leaking Brand alleges. Brand’s letter does not say.

Assuming that there is a viable cause of action (and assuming that it is not barred, for example, by the Federal Tort Claims Act) based on the alleged leaking, it would seem most likely that it would lie against the individuals responsible, not against the Committee itself. Any attempt to sue the Committee itself over the alleged leaking would face serious constitutional hurdles, such as Speech or Debate, sovereign immunity and separation of powers.

In short, the chances of Representative Waters obtaining any relief against the Ethics Committee in federal court are so remote that it seems highly unlikely that she would bring such an action. And there is no chance that any court would review or interfere with the committee’s investigatory or disciplinary decisions.

 

 

 

 

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OCE Funding in Jeopardy?

Update: OCE funding survives. Daniel Schuman reports.

There is going to be a roll call vote tomorrow on an amendment offered by Representative Mel Watt to reduce the budget of the Office of Congressional Ethics (OCE) by 40%. Daniel Schuman of the Sunlight Foundation sounds the alarm.

Representative Watt may have legitimate concerns with OCE (which I have criticized on occasion myself), but this doesn’t seem like a good way to run a railroad. With the House Ethics Committee hiring outside counsel to investigate itself, OCE looks like the most smoothly operating part of the ethics process right now. The House should step back and reassess the process as a whole before making any more dramatic changes.

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CREW Has Some Explaining To Do

Note: CREW declined comment on this blog post.      

On June 14, 2011, Citizens for Responsibility and Ethics in Washington (CREW) filed a complaint with the Office of Congressional Ethics (OCE) against Speaker of the House John Boehner. The complaint alleged that the Speaker had violated the Anti-deficiency Act, 31 U.S.C. § 1341(a), by directing the House Counsel to hire outside counsel to defend the constitutionality of the Defense of Marriage Act (DOMA). The essence of the claim was that the contract between House Counsel and the outside firm, signed in April 2011, violated the Act because the $500,000 obligation incurred exceeded the available appropriations in the FY2011 appropriation for the House Counsel’s office.

When I first read the complaint, several things struck me. First, the “ethics” issue raised by CREW was really a highly technical question of appropriations law. Not being an expert in this area, I couldn’t tell whether CREW’s claim was colorable or not. But I do know that the House Counsel has contracted with outside counsel in the past, using funds from other House accounts with the approval of the Committee on House Administration. It seemed odd that CREW did not address this fact, which was specifically mentioned by House Counsel Kerry Kircher in testimony that CREW submitted with its complaint.

Second, although Kircher made it clear that the funds to pay outside counsel would not be coming from the House Counsel’s office, but “from other sources in the House,” CREW offered little but vague generalities to support the proposition that this would be impermissible under the Anti-deficiency Act. The complaint is sprinkled with general citations to GAO’s multi-volume “Principles of Federal Appropriations Law,” but CREW identifies no specific authority for the proposition that reprogramming or transferring funds among House accounts is prohibited.

It is worth mentioning here that the core purpose of the Anti-deficiency Act is to ensure that the executive branch adheres to congressionally-imposed limits on expenditures. Although GAO has opined that the Act applies to the legislative branch, it appears that no legislative branch contract or expenditure has ever been found to have violated the Act. (FWIW, when I looked at the Act in connection with the government shutdowns in the 1990s, it was not clear to me that it was intended to apply to Congress at all).

Third, it was particularly surprising that CREW’s complaint does not cite any appropriations law expert in support of its theory. As far as can be determined from its website, CREW’s staff has no background in appropriations law. Given the highly technical nature of the allegations, one would have expected CREW to consult an expert before filing what is, after all, a claim that the Speaker of the House has violated a criminal statute. If it did so, there is no indication of it in the complaint.

Fourth, CREW’s decision to file a complaint against the Speaker also seemed curious. Following the Bipartisan Legal Advisory Group’s decision to defend DOMA, Boehner “directed House Counsel and House Administration Committee to assure that sufficient resources and associated expertise, including outside counsel, are available for appropriately defending the federal statute.”

The House Counsel is, of course, the House’s chief lawyer and was a party to the DOMA contract. The House Administration Committee is the committee of jurisdiction over accounts of the House generally, with specific authority over expenditures and auditing and settling of accounts, including those of House officers and administrative offices. See House Rule X(1)(k). The committee’s chairman, Dan Lungren, reflected the committee’s approval by signing the DOMA contract.

Presumably, when Speaker Boehner gave direction to the House Counsel and House Administration Committee, he expected that they would act in compliance with all applicable laws, rules and regulations. Filing an ethics charge against the Speaker for an Anti-deficiency Act violation in the House is like impeaching the President for a similar violation in the executive branch. Does CREW expect that the Speaker personally researches appropriations law to ensure that the House’s contracts are in compliance? Did it expect him to consult with an appropriations law expert to ensure that the DOMA contract in particular was lawful? Put another way, did it expect that he would do more than CREW itself apparently did before filing its complaint?

Finally, CREW chose to file its complaint with the OCE, an office with absolutely no expertise (and questionable authority) with regard to interpreting or opining on the Anti-deficiency Act or any other appropriations law issue. By contrast, it chose not to submit its complaint to GAO, a legislative branch agency with unquestionable and unparalleled expertise in this area. Unlike OCE, (which, AFAIK, has never addressed a remotely comparable issue), GAO has express statutory authority and decades of experience in resolving precisely these types of questions.

Fortunately, after CREW filed its complaint, the chairman of the House Legislative Branch Appropriations Subcommittee did ask GAO for an opinion on whether the DOMA contract violated the Anti-deficiency Act. On July 6, GAO issued an opinion, finding that the DOMA contract did not violate the Act and that the House has statutory authority to transfer funds from other contracts to cover the costs of the contract and other obligations of the House Counsel’s office.

GAO’s opinion relies heavily on 2 U.S.C. § 95b(b), which provides explicit authority for transfers among various House accounts, including that for the House Counsel. Significantly, the CREW complaint makes no mention of this provision, which naturally leads to the question of whether it was aware of it at the time that it filed its complaint.

CREW responded to the GAO opinion by withdrawing its OCE complaint. However, it did not issue an apology or explain its failure to discuss apparently controlling law in its original complaint. Moreover, its withdrawal letter somewhat churlishly claims that GAO did not address all of the issues raised in the CREW complaint, such as the question of whether the DOMA contract violated the Anti-deficiency Act by incurring obligations beyond FY2011. In fact, GAO did address precisely this question. See GAO Opinion of July 6, 2011 at 3 n.5.

We all make mistakes. But filing this strained ethics complaint against the Speaker of the House would seem to require something more than “my bad.” CREW has some explaining to do.

 

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A Thought on the Public Debt Clause and Article VI

It seems fair to say that the Public Debt Clause will get more attention from scholars in the next few years than it did for its first 145 years of existence. In that connection, I want to suggest that Article VI, clause 1, deserves some thought. That clause provides that “[a]ll Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.”

If one is trying to answer the question of why the framers of the Fourteenth Amendment changed the language of Section 4 from ensuring that the public debt would remain “inviolate” to ensuring that the “validity” of the public debt would not be questioned, Article VI would be a promising start. Article VI and Section 4 are trying to address analogous problems, namely how the debts incurred under one constitutional order will be treated in another.

By using Article VI’s concept of “validity,” the framers of the Fourteenth Amendment may have been borrowing (so to speak) the original Constitution’s solution to a similar problem without necessarily reaching consensus among themselves as to what that solution would entail. In this regard it should be noted that the first Congress vigorously debated whether Article VI required full payment of creditors, particularly those who were assignees of debt instruments. See David Currie, The Constitution in Congress: The Federalist Period 1789-1801 73-76 (1997). Notwithstanding constitutional arguments made by Secretary of the Treasury Alexander Hamilton and supporters in Congress, the decision was ultimately made not to pay these creditors in full.

Whether or not the framers of the Fourteenth Amendment were specifically aware of this history, it seems reasonable that they would have had some sense that “constitutionalizing” the debt in a new way could have potential ramifications that might be difficult to appreciate fully at the time. The use of the term “validity” therefore suggests an intent to claim the security of a pre-existing legal status (while realizing the core objective of ensuring that Civil War debt would be treated the same as all other public debt) without breaking new ground on what that status would entail.

Article VI may also shed some light on what the framers of the Fourteenth Amendment meant when they used the term “debt.” As Professor Larry Tribe points out in a piece posted last night at The Volokh Conspiracy and elsewhere (in which this blog had the honor of being cited): “the word ‘debt’ appears five times in the original Constitution. In each of those instances, it would be highly unnatural to read ‘debt’ as synonymous with ‘all legally required payments.’ The alternative—suggesting that the framers or ratifiers of the Fourteenth Amendment used a word already used in the Constitution, but imbued it with a different meaning—is equally implausible.”

Scholars will have plenty of material to work through.

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The First Witness at the Clemens Trial

The prosecution opened the Clemens trial today by having Charles Johnson, former House Parliamentarian and one of the world’s leading experts on the House of Representatives, read House Mouse, Senate Mouse to the jury.

Ok, I am making that up, but it was pretty close. The first exhibit offered by the prosecution was the U.S. Constitution. (I am not making that up). Apparently the prosecution needed Johnson to explain to the jurors that Article I establishes a Congress, consisting of a House and Senate, and grants it legislative powers.

The next exhibit was a photograph of the U.S. Capitol. Charlie correctly identified as such. Shockingly, there was no cross-examination on that point.

For the more substantive part of his direct testimony, Johnson explained the rules of the House, the role of committees, the broad investigatory jurisdiction of COGR, and the fact that it has been granted deposition authority by the House. Pretty much what I expected.

Johnson specifically described COGR’s investigatory jurisdiction as uniquely broad among House committees because it includes both its own legislative jurisdiction and that of any other committee of the House. He also mentioned the fact that COGR is supposed to report findings and recommendations to the committee of legislative jurisdiction. (I didn’t hear any discussion of whether it did so). There was no cross on this point.

One interesting question from the prosecution. Johnson was asked whether one purpose of committees holding public hearings was to convey information to the public. Johnson agreed that this was a “by-product” of public hearings, but demurred somewhat on whether this was a primary purpose of such hearings. There was no cross-examination on this point either.

When it was his turn, Rusty Hardin concentrated on getting Johnson to acknowledge that the congressional investigatory power was not unlimited. Johnson didn’t provide much assistance on this point, but he acknowledged that Congress cannot “expose for the sake of exposure” and that it lacks the authority to conduct a trial.

Clearly a major theme of the defense will be that COGR improperly exercised its investigatory authority to conduct a trial of private misconduct, rather than for legitimate legislative purposes. It remains to be seen how far the court will let it take this theme.

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Is a House Vote Required to Release the Clemens Tape?

Last week the Clemens defense team asked the judge to grant it access to the audiotape of the February 5, 2008 deposition in which congressional staff questioned Clemens regarding his use of steroids. COGR had previously provided the prosecution and defense with the transcript of this deposition, at which Clemens made many of the alleged false statements with which he is charged, but the tape has apparently never been released. According to this report, however, “a lawyer for the House appeared in court Wednesday and told U.S. District Judge Reggie Walton that the House clerk has the tape and it can only be released by a House resolution.”

I infer from the House’s position that the tape has been archived under House Rule VII, which provides in part that “[a]t the end of each Congress, the chairman of each committee shall transfer the records to the Clerk any noncurrent records of such committee.” Once the records have been transferred to the Clerk (who stores them at the Center for Legislative Archives in the National Archives), their public availability is governed by other provisions of Rule VII.

Any committee record that was not public prior to archiving will remain unavailable to the public for at least 30 years (unless an order of the committee during the Congress in which the record was created provides for a different period). However, more sensitive committee records, such as “[a]n investigative record that contains personal data relating to a specific living person (the disclosure of which would be an unwarranted invasion of personal privacy) . . . or a record relating to a hearing that was closed under clause 2(g)(2) of rule XI,” are kept closed for 50 years. Thus, under normal circumstances the Clemens tape would not be available to the public until 2038 at the earliest, and possibly not until 2058.

If Clemens issues a subpoena for the tape, however, as the article indicates he will, Rule VII would not provide the governing authority. House Rule VIII governs responses to subpoenas, and Clause 5(a) of Rule VII provides that “[t]his rule does not supersede rule VIII.” Thus, it would seem that the tape would have to be produced in response to a subpoena unless the provisions of Rule VIII dictate otherwise.

One relevant part of Rule VIII is the requirement that the recipient of a subpoena certify that compliance would be “consistent with the rights and privileges of the House.” Since the audiotape of the Clemens would be privileged under the Speech or Debate Clause (at least in the D.C. Circuit), it might be argued that producing it would be inconsistent with the rights and privileges of the House. But it would seem odd to say that this provision requires a vote of the House to release the audiotape. After all, COGR has acted as the holder of the privilege in the Clemens case and has chosen to assert or waive the privilege in various contexts. Why would permission of the House be required to waive the privilege as to the tape?

The only other relevant provision is Clause 6(b) of Rule VIII, which provides that “[u]nder no circumstances may minutes or transcripts of executive sessions, or evidence of witnesses in respect thereto, be disclosed or copied.” The term “executive session” most clearly refers to committee meetings or hearings that are closed by a vote of the committee pursuant to House Rule VI. House parlance often uses the term “executive session materials” to refer more broadly to non-public materials, particularly of an investigative nature, but I am not sure whether there is any specific House precedent as to whether those materials generally, or staff depositions in particular, would qualify as “executive session” within the meaning of Clause 6(b). Absent such precedent, I would expect that the Parliamentarians would be consulted on the proper interpretation of Clause 6(b).

Even if staff depositions are considered to be “executive sessions” under Clause 6(b) of Rule VIII, however, it seems very doubtful that this provision would justify withholding of the tape under the present circumstances. After all, the “transcript” of this “executive session” has already been released. Any interest that the House might have had in keeping the deposition confidential has already been eliminated.

I could be wrong, but I am skeptical that the Parliamentarians would insist on a vote of the House under these circumstances.