Exec Order Raising Debt Limit OK

If you look hard enough, you can find lawyers who will support your crazy position. Apparently, Jeffrey Rosen at The New Republic had a quick frappucino at Starbuck's, grabbed his AT&T (formerly Cingular) phone, and picked up some law at the local drive-through. He is now convinced that President Obama can constitutionally raise the debt limit by executive order.

The geniuses advising TNR, along with some of their lay colleagues, have come to the amazing conclusion that if Obama raised the debt limit by executive order, the Supreme Court would support him "by a lopsided margin (emphasis added)." They base their conclusion on cases decided by the current Supreme Court which rely on "standing" and "political questions" for their holdings.

First, let's talk about standing. In order to sue, a person must have standing. In simple terms, it means the person or entity filing the suit must fit into the following box: "A person must be sufficiently affected by the matter at hand, and there must be a case or controversy that can be resolved by legal action.There are three requirements for Article III standing: (1) injury in fact, which means an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct, which means that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative." Those are the verbatim words of the United States Supreme Court.

The attorneys providing TNR with their input believe that on the grounds of standing, it is likely that the High Court would simply refuse to hear the case. Most likely, if Obama did take the proposed executive action, the plaintiff would be John Boehner et al. In a recent case, confirming decades of precedent, the Court decided that an individual taxpayer did not have standing to sue the State of Arizona over its school voucher program. Too distant, too abstract, and unlikely to produce a result that would clearly redress one taxpayer.

The lawyers have somehow latched onto that decision to opine that the Speaker of the House of Representatives (where all revenue acts must come from) has no standing to sue the Chief Executive over fiscal matters directly impacting the defined power of the House of Representatives. Such an executive order would rely on the Fourteenth Amendment provision that "the public debt of the United States, authorized by law . . . shall not be questioned." Only the House has that revenue power, and the President cannot write law by executive order in an area specifically reserved to another branch of government. Boehner and the House would not only have the standing to sue, but would have a constitutional mandate to do so.

The lawyers also argue that the 1935 Perry case which in which a bondholder sued to void an Act of Congress taking the Treasury off the gold standard is a direct parallel empowering Obama to act independently without authorization from Congress. The two cases have next to nothing to do with each other. An individual bondholder is like an individual taxpayer--too distant, too abstract and unlikely to produce a result which would resolve the plaintiff's problem.

Going off the gold standard did not in any way directly affect the Fourteenth Amendment provision that the validity of the public debt shall not be questioned. Furthermore, the action was initiated in the House of Representatives, not by an executive order. An Obama executive order would neither confirm nor deny the national debt, it would just raise the debt ceiling without Congressional authority. Who better than the Speaker of the House of Representatives to have standing to challenge that executive order? Comparing him to an individual bondholder who actually was challenging the validity of the national debt is utterly ludicrous. Nevertheless, TNR and its legal advisers believe that as many as three of the conservative Justices would join the four liberals to deny Boehner standing based on those two "standing" precedents.

The lawyers then go on to posit that if the Justices somehow mysteriously did allow Boehner standing, the conservative justices would still join the four liberal living-constitutionalists in ruling against him and the Congress. They suggest that the only possible holdout would be Justice Clarence Thomas (their least favorite Justice, and my favorite). Their supposition is that Thomas might conclude that Article I gives Congress, and not the President, the power to borrow money on the credit of the United States. He might hold that the debt ceiling doesn't repudiate the debt or question its validity, it simply risks default by prohibiting the President from assuming extra debt beyond what Congress has authorized (remember "authorized by law?"). That sounds exactly like Thomas, and sounds completely right to me.

But somehow, the TNR legal advisers believe that Justices Roberts, Alito, and Scalia would not agree with Justice Thomas. The lawyers use their living Constitution arguments and try to meld them with some very dissimilar rulings by that triumvirate on the issue of "political questions" to dream that the four justices would not be entirely in sync. The political questions argument would apply only to how the Congress decided to raise or not raise the debt limit, not who raised it (i.e. the President). The Constitution clearly grants that power solely to the Congress, with the House initiating any such action. The President may suggest, but he may not impose.

Where the TNR lawyers go wrong on the "political questions" issue is their misunderstanding of the conservative justices' rulings either confirming executive power or refusing to decide on what they consider to be a purely political question pitting Congress against the executive branch. In those cases, the conservative justices voted in favor of the President's powers based entirely on the express provisions in the Constitution relating to those powers. The easiest to understand is the President's power to conduct war without interference from a Congress which has already assented to the military action.

Here's some of the living constitutionalist language from liberal lawyer Eric Posner: "[The President] has as his paramount duty to ward off serious threats to the constitutional and economic system." Economics and "serious threats" may be important and are surely political, but the President must still perform his magic within the Constitutional framework which leaves revenue and debt in the hands of Congress. Only a liberal would suggest that the President should ignore the Constitution in order to comply with it.

The TNR authors conclude with a statement from former President Bill Clinton (also a "constitutional scholar," like Obama): "I would invoke the Fourteenth Amendment to raise the debt ceiling without hesitation and force the courts to stop me" (and I didn't have sex with that lawyer, Hillary Rodham Clinton). Yeah, I added that last part. I doubt personally that he actually would have done such a thing, because by now he would have triangulated and worked out a budget and debt-ceiling agreement with Congress. But it's fun watching him try to egg Obama on.

I'll close with the Obama statement that TNR opened with: "I've talked to my lawyers and they are not persuaded that this is a winning argument." For once, I agree with Obama's lawyers. But the TNR folks remain undeterred. They go on to call Obama and his lawyers cowards.

Note: If there is truly a deal in Congress which Obama would sign, then that only means that for now the debt-ceiling crisis is averted. If the debt-ceiling is raised by Congressional action, keep this post in the back of your mind for future reference.