Category: Power of the Purse

Posted on

A Tweet Storm about Congress, Healthcare Reform, and Pathological Partisanship in America

Yeah, I know, tweet storms are supposed to be on Twitter. This one is, except I didn’t “thread” my tweets properly, as several people, including Paul Rosenzweig, patiently explained to me. I will try to do that next time. Anyway, for the moment, I am presenting the thread here, even though a bunch of tweets outside of Twitter read like some sort of weird haiku.

This is a tweet storm about Congress, healthcare reform, and pathological partisanship in America 1/31

I will cite Congress and the Constitution, ed. by Neal Devins and @kewhittington, and Congress’s Constitution by @joshchafetz 2/31

An important question addressed by these books is how Congress can restore itself to its proper role as a co-equal branch of government 3/31

Congressional dysfunction may be both cause and effect of what started as polarization and now is pathological partisanship in US 4/31

Pathological partisanship is when interests, policies & ideas are secondary to goal of defeating & dehumanizing an opposing tribe 5/31

Winning for winning’s sake is illustrated by spectacle of zero sum struggle between “repealing and replacing” vs. “fixing” Obamacare 6/31

Even though the exact same bill could be characterized either way 7/31

In such an atmosphere small wonder that Congress is viewed so unfavorably 8/31

When major political figures, media personalities and interest groups push perpetual conflict w/ no compromises, Congress looks useless 9/31

Sen. McCain said these “bombastic loudmouths” “don’t want anything done for the public good. Our incapacity is their livelihood.” 10/31

Congress’s institutional advantage is mediating conflict, not resolving philosophical questions or designing brilliant policies 11/31

“Congress is an institution skilled at reaching specific agreements that allow all parties to preserve their abstract commitments” 12/31

That was a quote from Elizabeth Garrett and Adrian Vermuele 13/31

Similarly Sen. McCain: “Merely preventing your political opponents from doing what they want isn’t the most inspiring work.” 14/31

“There’s greater satisfaction in . . .not letting [differences] prevent agreements that don’t require abandonment of core principles.” 15/31

There are tools Congress can use to bridge differences without requiring congressional factions to renounce their ideological views. 16/31

One is federalism, which allows states to develop their own approach to healthcare reform. 17/31

Another is the use of sunset provisions, which allow Congress to adopt reforms on an experimental basis. 18/31

Devins says sunsets improve congressional factfinding & incentivize Congress to monitor its empirical assumptions (p. 237). 19/31

As Chafetz notes, sunsets also enhance congressional power vis a vis the executive 20/31

Without sunsets, major legislation (like ACA) can be a one-time transfer of power to POTUS, who thereafter shapes policy. 21/31

Another mechanism to forge compromise on healthcare reform would be to hold hearings on issues beyond health insurance 22/31

Such as irrational & discriminatory pricing by medical & drug cos., abuse of tax-exempt status by “nonprofits,” and med liability. 23/31

Judicious use of these tools could help forge a broader compromise than now seems possible. 24/31

This will take time, however, & Congress must take action now to stabilize ins mkts & ensure that both sides have incentive to bargain 25/31

Congress could do this by providing temporary funding for cost-sharing subsidies currently in litigation before D.C. Circuit. 26/31

Importantly, funding for these subsidies would sunset, making it clear that admin cannot continue paying them unless Congress acts 27/31

This would be an “extremely skinny” bill, which might need to be fattened to attract R support 28/31

But if cong. leadership can attract substantial D support for this bill, it would set the table for a serious bipartisan reform effort 29/31

If Ds refuse to support bill or make concessions, leadership has unilateral options to employ. 30/31

But for the moment, let’s close w @SenJohnMcCain again: “What do we have to lose by trying to work together to find . . . solutions?” 31/31

 

Posted on

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

Yesterday Judge Collyer rejected the Justice Department’s motion to certify for interlocutory appeal her ruling that the House has standing to pursue its claim that the Obama administration has illegally spent billions of dollars in “cost-sharing” payments to insurance companies under the Affordable Care Act. The Justice Department had candidly admitted that it wanted an immediate appeal in part to avoid the “potential political ramifications” of an adverse judgment on the merits, which it seems to fully expect. See DOJ Reply Brief at 7.

The court, however, apparently did not think that saving the administration from the political embarrassment of a loss on the merits was a valid reason for certification. Instead, it emphasized that allowing an immediate appeal was unnecessary because the merits of the case can be resolved quickly. The “facts are not in dispute,” the court notes, and “[d]ispositive motions can be briefed and decided in a matter of months—likely before an interlocutory appeal could even be decided.”

The judge set an aggressive briefing schedule that will be complete by January 18. As much as the administration would like to avoid the question of where it got the legal authority to spend billions of taxpayer dollars, it better start thinking of its defense.

Posted on

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

In response to the argument that the House needed access to the courts in order to protect the separation of powers and its constitutional prerogatives, Representative Slaughter noted “the Founding Fathers gave to the legislative branch the weapons to defend itself without running to the court.” She then proceeded to list these tools of self-defense, including the power to write new laws, repeal old laws, disapprove regulations and attach riders to appropriations bills. She also noted the specific powers invested in the Senate, such as its ability to “put nominees’ feet to the fire” during the advice and consent process. Finally, she cited the House’s constitutional authorities with respect to the executive: “we investigate, hold oversight hearings and we sometimes impeach.”

There is no question that these are powerful tools, potentially powerful anyway, and I think I have already made clear my view that a lawsuit is a very poor option for the House to employ. Nonetheless, it is difficult to see how the House could effectively use some of these methods to address the employer mandate delay. Obviously, it cannot use the Senate’s authorities. It is also hard to see how it could rewrite the law (even assuming the Senate and the President’s cooperation) to remedy the problem. After all, the House does not object to the policy embodied in the employer mandate delay; it objects to the fact that the administration adopted the policy without congressional authorization. Indeed, one of the House’s “injuries” is that the administration opposed any congressional effort to change the law so as to authorize the action it was taking.

Most of the discussion of alternative remedies at the Rules Committee hearing revolved around the power of the purse. But no one explained exactly how the House might use the power of the purse in this situation. In the first place, the spending power is just political leverage; it works the same for policy disputes and legal disagreements. But the political leverage only works to the extent it relates to something the public really cares about; abstract institutional disputes between the branches will hardly qualify. Indeed, even when the public supports Congress’s goal, using the spending power as leverage is tricky. Congress wasn’t too successful in using the power of the purse to control the executive’s conduct of an unpopular war in the last administration, as Slaughter may recall.

Now I do like the Scalia/Ginsberg suggestion that funds for White House staff be cut off, and I wonder why the House doesn’t at least try something like that. Presumably the public wouldn’t be outraged by a reduction of the White House travel budget or the like. Maybe Congress is worried that the White House would demand a reduction in leg branch appropriations in return. In any event, using the appropriations process in this way would require majority support in both chambers, if not a supermajority sufficient to overcome a veto. And even if that existed (which it obviously does not), I am not sure how exactly it would be linked to the employer mandate delay.

So as a practical matter, I think the House is left with the unilateral authorities of investigation, oversight and impeachment. Investigation and oversight seem like appropriate responses because, as discussed in a prior post, further information about the decision-making process is needed to determine whether the House’s disagreement with the IRS is simply a garden-variety dispute over administrative law or whether it reflects a true invasion of the House’s constitutional authority

However, an ordinary committee investigation will not suffice here for at least two reasons. First, the Speaker has already made a decision to elevate this matter beyond a routine oversight issue, and he wants the House as a body to weigh in. If it were sent to a committee for investigation, it would just become one of many ongoing investigations and would quickly become bogged down in the partisan muck. Second, it is very likely that the administration would refuse to produce all (or perhaps any) information regarding the decision-making process on grounds of deliberative process, attorney-client and/or presidential communications privilege.

There is another way, though. The House has a well-established and time-honored method of obtaining important information from the executive branch. The resolution of inquiry is a privileged resolution that seeks information from the president or a department head. Although it is not uncommon for such resolutions to be introduced (CRS counts 290 from 1947 to 2011), most often in recent years by members of the minority party, the House has not adopted such a resolution since 1995.

A resolution of inquiry is not a “legal” device like a subpoena, but an assertion of the House’s role in the constitutional structure, which would seem to be what is called for under the circumstances. As CRS notes, “compliance by the executive branch with the House’s request for factual information in such a resolution is voluntary, resting largely on a sense of comity between co-equal branches of government and a recognition of the necessity for Congress to be well-informed as it legislates.”

A resolution of inquiry could be addressed to Secretary Lew, directing him to produce all documents related to the decision to delay the employer mandate. (A similar resolution could be directed to President Obama, although it is traditional that resolutions to the president “request” rather than “direct” the production of information).

Would such a resolution work? Possibly, but only if the House were united in the resolution. The question then is whether Representative Slaughter and her colleagues would support such a resolution. If they are sincere about wanting to protect the House’s institutional prerogatives, I don’t see why they would not. And if they refuse, at least the Speaker would have tried to use more traditional methods before proceeding with his lawsuit.

Of course, there is no legal penalty for refusing to comply with a resolution of inquiry. But if Secretary Lew were to refuse to comply with the resolution, the House would logically proceed to use its last constitutional tool, one where it exercises judicial and not merely legislative authority, namely an investigation into whether the Secretary should be impeached.

 

Posted on

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

After a mere two and a half years, the Treasury Department has produced documents responsive to my FOIA request. As you may recall (ok, you probably don’t recall), I asked Treasury to produce “[a]ll documents that contain, discuss, refer or relate to any legal opinion or analysis by the Treasury Department General Counsel, or any attorney thereof, of Section Four of the Fourteenth Amendment (also known as the Public Debt Clause), or any application or potential application of Section Four to the statutory debt limit.”

This seemed to me to be a pretty narrow request and, as it turns out, Treasury identified a mere 755 pages responsive to my request. It released 432 pages, some of which were redacted, mostly consisting of printouts of public materials like newspaper articles and transcripts of news programs or congressional hearings. You can peruse the whole thing here.

The remaining 323 pages (aka the good stuff) were withheld in their entirety.

Despite its best efforts, though, Treasury did provide a few interesting tidbits. It produced a number of pages consisting of materials (cases, law review articles, etc.) that were apparently considered relevant to the legal analysis of the Public Debt Clause. Today I want to focus on one of these documents (found at page 386 of the production), which is a New York Times editorial dated December 11, 1868.

The NYT was very upset by a proposal made by outgoing President Andrew Johnson that would have altered the terms on which the large national debt incurred during the Civil War would be repaid. Johnson was apparently proposing that the interest payments (at six percent) required on the bonds be used instead to reduce the principal. The NYT responded:

Coleridge says “a knave is only a roundabout fool.” Mr. Johnson illustrates the doctrine. What does he think he gains by his talk about using the interest to pay the principal? Why does he not propose, openly and without circumlocution, to repudiate the debt wholly and completely? Applying the interest to reduce the principal is simply confiscating the interest and using the amount of which the creditor is thus robbed toward paying the debt. The interest is as much due the creditor as the principal; and to talk about withholding the one, to pay the other, is to talk nonsense, and very dishonest nonsense at that.

Ah, the good old days of civility in politics. But what does this have to do with the Public Debt Clause? Well, despite the NYT’s virulent opposition to Johnson’s idea, there is no suggestion in the editorial that the proposal would be unconstitutional or, more specifically, that it would violate Section Four of the Fourteenth Amendment, which had been ratified mere months earlier (July 9, 1868).

Of course, an omission in a NYT editorial will bear only so much weight. But if there is no evidence that anyone at the time thought Johnson’s proposal, which appears to amount to a partial repudiation of the debt, violated the Public Debt Clause, it is hard to to give credence to the far more aggressive reading of the Clause now advanced by Professor Epps and others in connection with the statutory debt limit.

Good catch, nameless Treasury Department lawyer. Too bad your department’s penchant for secrecy prevents you from receiving your due.

Posted on

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

The Senate is set to vote on cloture for the debt ceiling bill that passed the House on Monday. If the cloture vote should fail (i.e., if there are not 60 votes to end debate and advance the measure to final passage), we will have an interesting illustration of the paradox of the post-nuclear Senate. As Professor Seth Barrett Tillman has observed, since the Senate Majority Leader has already asserted the power to change/suspend/reinterpret(depending on how you want to look at it) the Senate rules by simple majority vote,  it is not clear in what sense the minority still has the power to prevent the bill from passing. It has the power only so long as the majority allows it to do so, which seems a lot like not having the power at all.

For ordinary legislation, one might argue that the filibuster rule, while not truly binding on the majority (or not recognized by the majority as binding, anyway), reflects a Senate norm that significant legislation should not be passed with narrow majorities. But the President and his congressional allies have advanced a theory that the debt limit is different than ordinary legislative matters. Raising the debt ceiling, it is claimed, is a technical necessity to prevent default on existing debt and potentially catastrophic economic consequences. For that reason the President has declared the debt limit exempt from the normal give and take of the legislative process and has decreed that he will only accept a “clean” debt limit bill.

The House leadership bowed to the President’s unwillingness to negotiate and allowed a clean debt limit measure to come before the House. The vast majority of Republicans voted against the bill, but there were enough Republicans voting for it, including the Speaker and House Majority Leader, to allow the bill to pass.

The argument will be made that Senate Republicans, even though they may prefer to vote against the debt limit bill for symbolic/political/ideological reasons (as Senator Obama did a number of years ago), have an obligation to produce enough votes to allow cloture to be invoked. But this argument loses much of its force in a post-nuclear Senate. If the Senate majority believes that the debt limit is so important, how could it justify not invoking the nuclear option to move the bill to final passage? Clearly there is no legal argument against doing so other than those which would have been equally applicable to the majority’s previous invocation of the nuclear option.

Posted on

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”

Posted on

The Origination Clause and the Fiscal Cliff (updated)

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

Let’s begin with efforts to get the House to pass a Senate bill, S. 3412, the “Middle Class Tax Cut Act,” to extend current tax rates on all income brackets except the top two. The bill in question originated in the Senate (as reflected by the Senate bill number) and so would seem to violate the Origination Clause if it is a bill “for raising Revenue.

One might ask whether S. 3412 is a bill “for raising Revenue” given that it does not increase taxes, but merely keeps certain tax rates (which would otherwise automatically increase in 2013) at current levels. However, it appears fairly well-established, at least as a matter of congressional precedent, that the Clause covers all bills relating to raising revenues, not merely those that increase current revenues. The House has long taken the position that it has “sole and exclusive privilege to originate all bills directly affecting the revenue, whether such bills be for the imposition, reduction or repeal of taxes.” 2 Hinds Precedents § 1489 (resolution of 1872). There is some judicial authority in support of this proposition as well. See Armstrong v. United States, 759 F.2d 1378, 1381 (9th Cir. 1985) (“The term ‘Bills for raising Revenue’ does not refer only to laws increasing taxes, but instead refers in general to all laws relating to taxes.”) (emphasis in original).

House Democrats have sought to force a House vote on S. 3412 through the use of a discharge petition. However, Speaker Boehner observed the other day that any attempt to vote on S. 3412 would face a “blue-slip problem” in the House.  As McKay and Johnson explain (Parliament and Congress 241-42), this is a reference to the procedure the House uses to enforce its prerogatives under the Origination Clause:

The prerogative must be raised and resolved as a question of privilege in the House by disposition of a resolution generally asserting the prerogative without specifying the offending provision and purporting to return the entire Senate bill or amendment to the Senate as an infringement. Debate on the resolution then details the offending matter. ‘Blue-slipping’ is the term applied to the process by which the House returns an offending measure to the Senate, as the resolution if adopted is printed on blue paper. Any Member may offer such a resolution, but it normally is presented by the Chairman of the Committee on Ways and Means as the institutional guardian of the House’s revenue-raising prerogative. Traditionally the House on a bipartisan basis supports the position taken by the Chairman of Ways and Means despite the political acceptability of the measure containing the offending provision.

While S. 3412 appears to violate the Origination Clause, the Senate is not constitutionally barred from taking the initiative now on a revenue bill. This is because the Senate is permitted to propose amendments to revenue bills that have originated in the House. While there are some gray areas with respect to the scope of that authority, there would not seem to be any question of the Senate’s right to take a House bill such as H.R. 8, the “Job Protection and Recession Prevention Act of 2012,” which passed the House on August 1, 2012, and propose the language of S. 3412 as an amendment. (H.R. 8 would extend all of the current tax rates).

Of course, the Senate’s authority in this regard only lasts until January 3, 2013, when the current Congress ends. At that point all legislation introduced in the 112th Congress will expire, and the Senate will have to wait on a new House bill before it can (constitutionally) move revenue legislation.

For more background on the Origination Clause, see this CRS report.

 

Fiscal Cliff Update (1-1-13): 

The Senate’s action yesterday was to pass H.R. 8 (“American Taxpayer Relief Act of 2012”), as amended. So there is no Origination Clause violation, as far as I can see.

And the House has about 45 hours to act.

 

 

 

 

Posted on

The Public Debt Clause and the Coming Debt Limit Crisis

Amidst all the legal excitement this week, you may have missed BNA White House Reporter Cheryl Bolen’s article on Section 4 of the 14th Amendment (AKA, the Public Debt Clause) and the possibility of another debt ceiling crisis. The article (“Obama Could Face Sophie’s Choice as Country Approaches Debt Limit”) begins: “As the nation again approaches its statutory debt limit this winter, President Obama may be forced to choose among potentially illegal or economically disastrous options, such as borrowing money without the approval of Congress or doing nothing as the country defaults on its debt.”

Professor Epps is interviewed at some length in defense of his argument, familiar to readers of this blog, that “[t]he president could in good conscience point to Section 4 of the 14th Amendment as a basis for unilaterally borrowing money.”

On the other side is me,[*] armed only with constitutional text, historical practice, and judicial precedent. With some cover fire from Larry Tribe, Erwin Chemerinsky, and the Congressional Research Service.

Somewhere in the middle is Professor Peter Shane who, while acknowledging that it is “probably unlikely that when the 14th Amendment was drafted, it was intended to give the president some new, unprecedented power to incur debts on behalf of the United States,” suggests that one could reach the same result as a matter of statutory construction. Essentially he argues that if Congress has given the president a whole bunch of conflicting instructions regarding revenues, spending and debt, it might do the least damage to congressional intent for the president to borrow in excess of the debt limit.

The problem, as I point out, is that no one has every understood the statutory scheme to work that way, and one has to interpret congressional intent based on the background practices and assumptions on which Congress legislated. “’I think it’s a question of faithfully interpreting and then executing the laws. And I think the way presidents have always looked at it, correctly, is that when they hit the debt limit they have to go back to Congress and get an increase if they want to borrow more money,’ Stern said.”

Indeed, if it were otherwise, what would be the point of having a debt limit in the first place?

Thanks to the good folks at BNA, you can read the full article here.

 

Reproduced with permission from Daily Report

for Executives, 122 DER AA-1 (June 26, 2012).

Copyright 2012 by The Bureau of National Affairs,

Inc. (800-372-1033) <http://www.bna.com>


[*] I know it should be “I,” but that really sounds pretentious. Try it and see.

Posted on

Seeking Section Four Transparency

As the national debt rises rapidly toward the latest “ceiling”, Professor Epps once again proposes (“A Gun to the Debt-Ceiling Fight”) the President invoke (or threaten to invoke) Section Four of the Fourteenth Amendment to avoid all that unpleasantness from last time. Needless to say, I don’t think any more of the legal merits of this proposal than I did before. I am also not too sure that Epps is right in thinking that the President’s biggest problem is the perception he is too weak. I mean, the man has a “kill list,” for Pete’s sake.

But let me concentrate on the positive. I wholeheartedly agree with Epps that the executive branch should share with us any analysis of Section Four that may have been done in connection with debt crises of 2011, 1995-96 or 1986 (or at any other time).  Epps reports “I called the U.S. Department of Justice to ask whether the Office of Legal Counsel has issued, or is preparing, a formal opinion on the President’s possible power under Section Four; the DOJ’s spokesman did not return my call.”

Well, I can beat that. I filed a FOIA request last July seeking that the Treasury Department produce “[a]ll documents that contain, discuss, refer or relate to any legal opinion or analysis by the Treasury Department General Counsel, or any attorney thereof, of Section Four of the Fourteenth Amendment (also known as the Public Debt Clause), or any application or potential application of Section Four to the statutory debt limit.”  I received a prompt response to tell me that . . . well, that I wouldn’t be receiving a prompt response. According to the Treasury Department, “unusual circumstances exist regarding a search and review of the information requested which may result in voluminous records.” Since then, nada.

It’s a little surprising that my request, which I thought was pretty narrow, would (or might) result in “voluminous records.” Presumably this means that Treasury has done some sort of analysis of Section Four. I assume that Epps would like to see it. So would I.

And there is no reason why the Treasury Department shouldn’t share it. Its not like we are asking to see the kill list, after all.

Update: Here is the FOIA request.

 

Posted on

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.