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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.

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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.

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What Senate Legal Counsel’s Silence Says About Noel Canning: Not Much

Writing in Slate last week, Professor Neal Devins, a noted expert on the Constitution and Congress, had several complaints about how Congress presents its legal positions in court. Devins is unhappy that the House, because it operates on a majoritarian basis, may present legal views that are held only by the majority, but he is equally unhappy that the Senate, because it requires bipartisan consensus, may present no legal views at all. And he is particularly unhappy that in the Noel Canning recess appointments case the Supreme Court heard “only from the Senate minority and not from the Senate itself.” As Devins asks plaintively, “why would the Senate’s own lawyer sit on his hands while the minority leader purports to speak for the Senate?”

Why indeed. Let’s begin by reviewing how “the Senate’s own lawyer,” aka the Senate Legal Counsel, operates. As Devins notes, Senate Legal Counsel must, by statute, receive specific authorization before filing any brief on behalf of the Senate. Devins says that “counsel representation of the Senate requires two-thirds support of a leadership group made up of four members of the majority party and three members of the minority party,” but this is incorrect. Appearance as amicus curiae is authorized by Senate resolution, not by the Joint Leadership Group. See 2 U.S.C. § 288b(c). Nothing in the statute requires that such a resolution be bipartisan.

Continue reading “What Senate Legal Counsel’s Silence Says About Noel Canning: Not Much”

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Seth Barrett Tillman on the Relationship Between the Origination Clause and Recess Appointment Clause Cases

Professor Tillman sends the following thoughts:

I expect one or more, if not all of the Supreme Court’s four liberal members to affirm the DC Circuit’s decision in Noel Canning. The primary issue in Noel Canning is not whether or not the Senate was in recess – but who or what institution gets to decide whether or not the Senate was in recess. Does the Senate make that call or do the President and the courts? In other words, once the Senate has flagged in the traditional way in its traditional records whether or not it is in session or in recess, does anyone (including the President) get to look beyond or behind the record created by the Senate. The President’s position is that the President and the courts are in a better position to make the call than the Senate.

The Origination Clause challenge to the PPACA, which is now making its way through the lower courts, poses a very similar (if not precisely the same) issue. The enrolled bill enacting the PPACA expressly records that the bill originated in the House, not the Senate. The plaintiffs in the Origination Clause case take the position that the courts should ignore the joint determination of the House and Senate in regard to house of origin, in spite of the fact that the relevant constitutional actors have made a final determination using their traditional records in the traditional way. Here too, plaintiffs say the courts could and should look behind the official House-Senate-created-and-verified record.

When is the Senate in recess?

      When the Senate’s records state that the Senate was in recess.

When has a bill originated in the House?

      When the enrolled bill enacting the statute records that the bill originated in the House.

After all, with the demise of the filibuster, the scope of the President’s recess appointment power matters much less. So if the Supreme Court wants to reverse Noel Canning, then “Go ahead, make my day.”

 

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Further Reflections on the Deliberative Process Privilege in the Fast and Furious Investigation

Following up on my last post, the House Committee on Oversight and Government Reform advances several grounds for rejecting the Justice Department’s assertion of deliberative process privilege. The broadest argument is that deliberative process is a common law, not a constitutional, privilege and therefore must give way to Congress’s constitutional power of oversight. As COGR puts it, “[d]eliberative process, a common law evidentiary privilege designed to protect the confidentiality of some intra-agency deliberations in the context of adjudicatory proceedings (and FOIA), simply is not consistent with an overarching constitutional principle that requires the Congress to oversee Executive Branch agencies precisely by peering inside them.” Motion at 27. We have encountered a similar argument before in connection with whether Congress is bound to respect the attorney-client privilege, another common law privilege.

Continue reading “Further Reflections on the Deliberative Process Privilege in the Fast and Furious Investigation”

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The Fast and Furious Litigation: High Stakes for Congressional Oversight?

In its recently-filed motion for summary judgment before Judge Amy Berman Jackson, the House Committee on Oversight and Government Reform asks the court to reject the Attorney General’s claims of deliberative process privilege and to order the Justice Department to turn over documents responsive to a committee subpoena in the Fast and Furious investigation.

COGR v. Holder is a bit of a sleeper case. Although it has not received much press coverage, the outcome could have significant consequences for congressional oversight of the executive branch. A broad ruling that deliberative process and other common law privileges are inapplicable to congressional proceedings (or that the decision whether or not to accept these privileges is solely within congressional discretion) could deprive the executive branch of one of the principal tools it uses to slow down or thwart entirely congressional demands for information. On the other hand, if the courts were to endorse the executive’s right to assert such privileges, it could embolden federal agencies to resist congressional oversight, making it even more difficult than it is today for congressional committees to pry information from these agencies.

Continue reading “The Fast and Furious Litigation: High Stakes for Congressional Oversight?”

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Judge Bates Dismisses Rangel’s Lawsuit

Last week, as expected, Judge Bates dismissed Representative Rangel’s lawsuit against the Speaker, the Clerk and various former members and staff of the Ethics Committee. As the court notes in conclusion, “everything on Rangel’s wish list implicates insurmountable separation-of-powers barriers to the Court’s exercise of authority,” with the “most problematic [being] Rangel’s unprecedented view that this Court may order the House to, in effect, un-censure him.”

This is certainly correct, and I think the court’s 49-page opinion gives Rangel’s arguments rather more attention than they deserve. Dismissal was more than justified by the following points made in the opinion:

  1. Rangel sued the wrong party. The court points out that “Rangel’s reputational harm was not caused by any of the defendants but by the House as an independent body- and it is not a party to this action.” (slip op. at 11)
  2. An order against these defendants would not have redressed Rangel’s alleged injuries because the defendants have no power to alter the House’s Journal (the relief requested by Rangel) on their own. (slip op. at 35)
  3. Even if the House had been a party, the court lacks the power to order the House to take any action that would redress Rangel’s alleged injuries. “This Court has the same ability to order the House to edit its own Journal as it does to order the House to discipline one of its Members or to promulgate a particular Rule- none.” (slip op. at 35-36)
  4. All of the defendants were in any event immune under the Speech or Debate Clause. (slip op. at 36-44)

Unfortunately, Judge Bates was not content to rest his opinion on these points but also engaged in an extensive, unnecessary and rather confusing discussion of the political question doctrine. He concludes that Rangel’s claims are barred by the political question doctrine, but only because Rangel failed to state a viable constitutional claim in the first place. The political question doctrine, however, is designed to identify situations in which a non-judicial body has the final say on a constitutional issue. If it applies only because the court finds no constitutional issue to resolve, invoking the doctrine seems pointless. The court seems to think that directly reviewing Rangel’s claims on the merits, rather than as part of the political question analysis, would evince a “lack of disrespect” (I think it means lack of respect) for the House, but the price of this politeness is to make the political question doctrine even murkier than it is already.

On balance, though, this opinion should stand as a caution against challenging House disciplinary proceedings in court, and that’s a good thing. One final note—someone should bring to the court’s attention that Nixon v. United States, 506 U.S. 224 (1993) involved Judge Nixon, not former President Nixon. See slip op. at 33 (referring to “an ex-President challenging his impeachment in the courts.”).

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The Filibuster and Obamacare: My Comments on Seth Tillman’s Comments

Seth Barrett Tillman sends in the following thoughts (also posted on The Volokh Consipiracy)  on Obamacare and the Senate’s use of the “nuclear option” to limit the filibuster:

The Nuclear Option and Political Responsibility for Obamacare

 The Senate’s use of the nuclear option pins any defects in the Affordable Care Act (“ACA”) on the Democrats. Until the nuclear option was used, Democrats said that they had to pass an arguably defective bill because they could not get around a minority Republican-led filibuster in the Senate. In other words, although the Senate was able to invoke cloture and pass the ACA when it had Senator Ted Kennedy’s vote, once he died and was replaced by Senator Scott Brown, the Democratic majority in the Senate was unable to pass an alternative bill or substantively amend the ACA.

 But the use of the nuclear option undercuts that narrative. We now know that the Democratic majority always had the ability to change the rules and to end debate on any amendment or amendments to the ACA. The Senate Democratic majority always had the power to terminate debate—it is just that the Senate Democratic majority refused to exercise that power.

 If Obamacare is defective, it is not because the Republicans filibustered or threatened to filibuster any amendments, but because the Senate Democratic majority refused to terminate debate using a power which was always within their reach. It follows that political responsibility for any virtues or defects in the ACA rests entirely with the Democrats who passed it.

I don’t have any comment on the political aspect of this argument, but Tillman raises an interesting legal question. There is no doubt that the Senate majority “had the power” to use the nuclear option in 2010 if by this one means nothing more than it could have acted, as a factual matter, to override any filibuster. This calls to mind the “debate” President Obama had with a heckler the other day, in which the heckler yelled that Obama had the power to stop all deportations by executive order, and Obama replied “Actually I don’t.”

The heckler meant that Obama had the power, as a factual matter, to sign an order halting all deportations, which is certainly true. It is also (virtually) certain that such an order would have the effect, at least in the short term, of stopping deportations and quite likely true that it would prevent any further deportations for the remainder of Obama’s term.

What Obama meant is that although he has the factual power to take this step, he lacks the legal authority to do so. More precisely, Obama believes, or says he believes, that he lacks the legal authority to stop all deportations. On the other hand, Obama believes, or says he believes, that he has the authority to halt certain categories of deportations, and one can see how the heckler might not appreciate the difference.

Which brings us back to the Senate. One might infer from its action last week that a majority of the Senate believes it has the lawful authority to override a filibuster by a simple majority vote, although I cannot identify any coherent legal theory that would support the precise action it took (overriding the filibuster as to non-Supreme Court nominations only). There is a coherent legal theory, advanced by Republicans in 2005, to the effect that the filibuster is unconstitutional as to nominations only (not as to legislation), but it does not appear that the Senate is relying on that theory to support its action.

Leaving that aside, one can say with confidence that if the Senate acted lawfully last week, it could have lawfully overridden the filibuster against the Affordable Care Act in 2010. But it remains possible that a majority of the Senate did not believe in 2010 that it had this authority, and that a majority of the Senate does believe that (due to changes in seats or changes in attitude) today.

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The Senate’s “Neutron Option”?

Roll Call reports this morning:

 The Senate voted, 52-48, to effectively change the rules by rejecting the opinion of the presiding officer that a supermajority is required to limit debate, or invoke cloture, on executive branch nominees and those for seats on federal courts short of the Supreme Court.

At least three Democrats — Carl Levin of Michigan, Joe Manchin III of West Virginia, and Mark Pryor of Arkansas — voted to keep the rules unchanged.

The move came after Majority Leader Harry Reid, D-Nev., raised a point of order that only a majority of senators were required to break filibusters of such nominees. Presiding over the Senate as president pro tem, Judiciary Chairman Patrick J. Leahy of Vermont issued a ruling in line with past precedent, saying that 60 votes were required. Leahy personally supported making the change.

Voting against Leahy’s ruling has the effect of changing the rules to require only a simple majority for most nominations.

There are two interesting aspects of this action. First, Senator Leahy apparently voted to reverse his own ruling, which is puzzling to say the least. Either his initial ruling was correct, or it was not. One would have to infer that he believes his ruling was correct under the existing rules of the Senate, but that the Senate could choose to change the rules by reversing it. But I am not aware of any legal theory that would justify that approach.

Second, the new rule evidently is intended to apply solely to executive branch nominations and to non-Supreme Court judicial nominations. So the filibuster apparently survives only as to one particular type of nomination. Call it the “neutron option.” (If you are too young to get this reference, google it).

Again, however, I am not aware of any legal or constitutional theory that would justify distinguishing between Supreme Court and other nominations. By this I don’t mean I am unaware of any good legal theory. As we have discussed before, there are a number of legal arguments that have been invoked to support the nuclear option, including some that I find quite implausible. However, I am not aware of any argument, plausible or implausible, that supports what the Senate apparently did today.