Constitutional?

by wj 

For this weekend's Open Thread, we look at political theater vs reality.

The text of Section 4 of the 14th Amendment to the US Constitution is unequivocal: 

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.

So what does that mean in practice?  Well, suppose you have a law (call it a debt ceiling law) which has the effect of forcing the US government to default on its debts.  Such a law is, on its face, in violation of the Constitution.  Period. 

So suppose we find ourselves in a situation where (after exhausting various accounting tricks) the government can only pay off existing bonds and/or meet obligations under existing contracts by taking on additional debt beyond that statutory limit.  It isn't the case that the President (or, acting on his behalf, the Secretary of the Treasury) may breach the debt ceiling.  Rather, they are required to do so.  Nothing optional there at all. 

So, if the Congress cannot get itself together to raise the debt ceiling, then all that happens is that the government shuts down.  A scenario we have seen played out before, whenever the Congress cannot manage to pass a budget bill.  Inconvenient?  Sure.  Nasty impact on the party (historically, and this time, the Republicans) who caused the problem? Also true.  But a disaster for the economy, both of the US and of the world? Not so much. 

An obvious step for the President to take, in order to avoid the negative impacts of worries about the US paying its debts, is to simply stand up and say exactly that:  "We will pay our debts.  If we have to shut down because we don't have funds beyond what is required to pay our debts, then we will do so; I hope the GOP will avoid that, but it's up to them.  However, our debts will be paid, in full and on time."   

The sooner he does so, the better.   

Comments

[wj]

I have this image of McCarthy realizing that his position is this: imagine the US invades Afghanistan in pursuit of bin Laden. And the Taliban announce that the US must withdraw. Because they have a hostage, who they will kill otherwise. Said hostage being the aforementioned bin Laden. Oops.

But (always assuming I, a non-lawyer, am reading the law correctly), that's where he is. No leverage over the debt at all. While Biden would doubtless prefer, all other things being equal, not to have a government shutdown, he's been around long enough to know who will get blamed for that. (Besides, given what we've seen of the House GOP's "legislative machine" so far, a fall shutdown due to lack of a budget seems likely anyway.)

[liberal japonicus]

Something like this?
https://youtu.be/tTNJUjsNKVk?t=174

I suspect McCarthy says the same thing Clevon Little does when he gets in the safety of the jail

[McKinneyTexas]

So what does that mean in practice? Well, suppose you have a law (call it a debt ceiling law) which has the effect of forcing the US government to default on its debts. Such a law is, on its face, in violation of the Constitution. Period.

WJ, the law is not unconstitutional. The intent is to force government--to some extent--to live within its means, which can be accomplished by spending reductions, which are not unconstitutional. Limiting how much can be borrowed vs defaulting on government obligations are two entirely different things.

So suppose we find ourselves in a situation where (after exhausting various accounting tricks) the government can only pay off existing bonds and/or meet obligations under existing contracts by taking on additional debt beyond that statutory limit. It isn't the case that the President (or, acting on his behalf, the Secretary of the Treasury) may breach the debt ceiling. Rather, they are required to do so. Nothing optional there at all.

Again, not so. Like businesses, families and individuals who are approaching their maximum credit limits, the choice is to borrow every last dollar *and then* cut spending or to cut spending in advance of exhausting the credit limits.

Or, as we see play out whenever an entirely predictable "debt ceiling crises" pops of, we get a crap ton of political theater and then some sort of fig leaf compromise that kicks the debt can down the road. We are ten years out from SS hitting the economic wall and even less for Medicare. These are actuarial certainties which neither party is willing to address substantively, although (for once), the Republicans "kind of, sort of" genuflect in favor or some kind of solution more than the Democrats.

[bobbyp]

Again, not so. Like businesses, families and individuals who are approaching their maximum credit limits, the choice is to borrow every last dollar *and then* cut spending or to cut spending in advance of exhausting the credit limits.

This is utter nonsense. Fiscally a government, sovereign in its own currency, is not anything like a business, family, or individual.

We are ten years out from SS hitting the economic wall and even less for Medicare.

I've been reading and hearing this line of bullshit for 50 years, and it is no more true now than it was when Everett Dirkson was railing against "out of control" government spending.

[wj]

The intent is to force government--to some extent--to live within its means, which can be accomplished by spending reductions, which are not unconstitutional. Limiting how much can be borrowed vs defaulting on government obligations are two entirely different things.

McKinney, you are a good enough lawyer that I could suspect that you are deliberately missing the point. If the desire is to reduce spending, that's what budget bills are for. (Always assuming that the House Republicans can agree on what they want there. Which is not the way the smart money bets. Considering that they have yet to agree on their ransom demands over the debt limit.) The borrowing impacted by the debt limit is to fund spending which was already committed to in previous budgets.

Cutting the budget is different from defaulting on the debt; limiting borrowing due to the debt bill is exactly like defaulting. That, after all, is the whole point: to use the threat of default as leverage.

[hairshirthedonist]

They'll burn the village to save the village from the village.

[bobbyp]

The intent is to force government--to some extent--to live within its means, which can be accomplished by spending reductions, which are not unconstitutional

Raising taxes gets to the same place. Is that now unconstitutional? I must have missed that.

[Girl from the North Country]

Raising taxes gets to the same place. Is that now unconstitutional? I must have missed that.

LOL. Nice one, bobbyp.

[Snarki, child of Loki]

Biden is required by *statute* to spend money according to congressional appropriations.
He is also required by *statute* to collect taxes according to congressional laws.
If the combination of these two results in a deficit (which it mostly has) then the choices are (a) borrow
(b) violate one of the statutes

When up against the debt limit, choice (a) also involves violating a statute.

So just drone strike the a-holes and be done with it.

[nous]

So just drone strike the a-holes and be done with it.

NRA stretch goals after mainstreaming the AR and handing out free suppressors. You just need to commit to living the drone lifestyle. It's the next logical step in the castle doctrine.

[wj]

You just need to commit to living the drone lifestyle. It's the next logical step in the castle doctrine.

But there's the (lack-of)-moat problem. Is there an equivalent passive defense** against drones? Don't know that I've heard of one.

** Active defenses require ammunition resupply. Difficult once you've pulled up the draw bridge.

[Michael Cain]

What Snarki said. There are three statutes that, in the present situation, can't all be satisfied. I'm not sure why the Republicans believe that forcing some sort of default/shutdown will work out for them this time.

[Michael Cain]

Open thread...

Since we placed my wife in memory care, I've been trying to spend some time every day whittling down the accumulation from 43+ years together. (When we moved 2.5 years ago she simply refused to let me throw things away, even things that were clearly trash.) Cleaning out file drawers recently I came across drawings I'd done for my kids when they were small, first for them to color and then in hopes they would write a story to go with them. They called them "the little monsters" pictures.

Both grown kids were excited that I still had them -- more excited than I remember them being when they were little. They never did write a story, but now I have three granddaughters so I can try again. My son says I should draw more, but get with the times and do them digitally instead of pencil, ink, and erase. I have a Wacom One digital drawing tablet and am starting to look at software to see if any of it will let me work the way I want. Hopefully this doesn't turn into another "How hard can it be?" coding project :^)

Example here. Warning: it's a pretty big jpeg image.

[wj]

I'm not sure why the Republicans believe that forcing some sort of default/shutdown will work out for them this time.

"Insanity is doing the same thing over and over and expecting different results." -- A. Einstein

Pretty well sums it up.

[GftNC]

I'd forgotten this was an Open Thread. In which case: I remember posting here some years ago that storks had nested and hatched young in England for the first time since before the battle of Agincourt. That was at Knepp, whose owners had rewilded it as an experiment after they inherited the estate, which had dead soil after decades of intensive farming. Reading a follow-up in today's Times, which talked of many wonderful subsequent developments (including now 20 stork nests! and beavers! and vast amounts of other wildlife), the following interesting news suddenly seemed rather hopeful:

“A very exciting thing has just happened,” he [Knepp's owner] said. “We’ve been doing some research on Knepp and taking core samples of the soil from across the estate. And our rewilded grassland has been found to capture 3.3 to 4.8 tonnes of CO2 per year, per hectare.”

He shows me an email, from the CEO of a company called Agricarbon: “It’s remarkable. I haven’t seen such a clear demonstration on anything like this scale, or with this level of evidence, anywhere in the world.”

To put this into perspective, it takes a single tree 100 years to absorb one tonne of CO2. This new research would put “rewilding grassland” way ahead of any other carbon-capture schemes currently being used – such as planting woodland — much faster and for considerably less cost. After all, “You don’t really have to do anything [to rewild grassland]. Just reintroduce the animals that should be there, stop spraying it, then… leave it.”

https://www.thetimes.co.uk/article/why-the-knepp-rewilding-project-is-truly-magical-m68trp899

[JanieM]

Michael @7:41: That's a wonderful drawing. It reminds me of a story I read and loved as a child, with kids and knights and castles, that I could never find again in later years. I hope you figure out the tools/tablet situation without having to sidetrack to a coding project! (Not that coding isn't fun too....)

:-)

[Michael Cain]

After all, “You don’t really have to do anything [to rewild grassland]. Just reintroduce the animals that should be there, stop spraying it, then… leave it.

Grass vs trees is a long-term ongoing war. Some deciduous trees' sap is a mild herbicide specific to grasses. Pine trees shed needles that pile up deeply enough to choke out the grass. Grass's big weapon where I've lived is fire: burn off the thatch and above-ground stems every 5-7 years to kill the saplings. I spent most of my early life where grass was winning. One of my reactions after I moved to the East Coast was, "There's something wrong with the dirt here. If you leave an area alone, it grows trees."

[JanieM]

I read a long long time ago -- and can't remember where (Sand County Almanac? This Sacred Earth?) -- that the boundary between grasslands and forest in the middle of this continent has shifted over millions of years -- back and forth, depending on climate and I don't know what else. I'm sure humans have upset the balances....

[Michael Cain]

JanieM @9:31: Every bit of it is stolen. Standard fairy tale pictures. (Although I had hoped the kids would write some non-standard parts.) The little monsters are based on the mad scientist's monster in the 1946 Bugs Bunny cartoon Hair-Raising Hare. And I'll almost certainly go back to paper and ink before I take on another open-ended coding project.

[Michael Cain]

...that the boundary between grasslands and forest in the middle of this continent has shifted over millions of years...

Not that many million years ago the now plains/prairie region in the middle of the US was shallow sea. As recently as 15,000 years ago much of it was boreal forest during the end of the last glacial period. As recently as 1,000 years ago the Nebraska Sandhills, currently grasslands, was an area of mobile dunes without any ground cover.

When I was an undergraduate at the University of Nebraska, I used to wander through the state museum of natural history on campus. Nebraska has 93 counties. Mammoth and mastodon fossils have been found in all of them.

[GftNC]

I could not recommend this interview with Anthony Seldon, BoJo's biographer, more highly. It (and by the sounds of it, Seldon's book) is astonishingly insightful, and clearly extremely well sourced.

https://www.theguardian.com/books/2023/apr/30/anthony-seldon-boris-johnson-at-10-biography-interview

After a headline which says: "Anthony Seldon on Boris Johnson: ‘At his heart, he is extraordinarily empty’" you get a devastatingly destructive assessment of BoJo's character, and leadership, which reads (alas) absolutely true. The following is just a snippet:

Of the 57 people who have held the highest office, Seldon suggests, Johnson was probably unique in that he came to it with “no sense of any fixed position. No religious faith, no political ideology”. His only discernible ambition, Seldon says, was that “like Roman emperors he wanted monuments in his name”.

“To those many people who say, ‘Of course he believed in Brexit’, the evidence is absolutely clear,” Seldon says. “From the beginning it was striking that he believed that there was a cause far higher than Britain’s economic interests, than Britain’s relationship with Europe, than Britain’s place in the world, than the strength of the union. That cause was his own advancement.”

[wj]

GftNC, Seldon's comments do illustrate how Johnson and Trump are soulmates. "At his heart, he is extraordinarily empty" could likewise describe Trump. BoJo is, from what I can tell at a distance, a lot smarter (admittedly a low bar), but otherwise....

[wj]

Just a note that my thoughts on the 14th Amendment is one of the 5 scenarios discussed here
https://www.washingtonpost.com/business/2023/05/03/debt-ceiling-scenarios/