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Debt Ceiling: Mark Tushnet Says: "Bruce Bartlett Is No True Scotsman"

Mark Tushnet wrote:

Balkinization: [L]iberals now appear to be trying to put an off-the-wall idea on the table... the idea that legislation setting a debt ceiling is unnecessary because of Section 4 of the Fourteenth Amendment. Is that an off-the-wall argument? One test might be this: Can anyone locate any writing, preferably legal scholarship but even off-hand musings will do, making that argument prior to, say, November 5, 2010?

I wrote that: (a) Clinton Treasury staff had certainly made off-hand musings about the issues back during the Gingrich debt-ceiling crisis of 1995-6 (which was resolved when Treasury Secretary Rubin threatened not to issue the March 1996 Social Security checks); and (b) the most aggressive advocate of §4 was Bruce Bartlett, who is certainly no liberal.

Mark responds:

Balkinization: Brad DeLong, citing Bruce Bartlett, says that it's not only liberals who refer to Section 4. On these matters, though, Bartlett's an apostate conservative...

Let me, for one, state that Bruce Bartlett is indeed A True Scotsman. Mark's claim that he is not shows simply how inadequate his "conservatives did it with their claim that the ACA mandate was unconstitutional, now liberals are doing it too" opinions-of-shape-of-earth differ framing is.

I thought back in 1995--and I think now--that if the shit truly does hit the fan (and it may well not, even without an act raising the debt ceiling) then the Treasury has a choice between three options:

  1. Break the law and violate its "take care" duty by refusing to issue checks duly authorized and appropriated.

  2. Break the law and violate its "take care" duty by issuing debt over and above the debt limit.

  3. Break the law and violate its Amendment 14 §4 duty by defaulting on the national debt.

It had seemed to me clear--and I believe that every single Treasury General Counsel would say that it is completely clear--and it seems to me clear that option (3) is a complete non-starter: the duty to ensure that the debt be unquestioned postdates the duty to take care that the laws be faithfully executed, and the language of §4 suggests to me at least a more stringent duty than the language of Article II.

And I haven't seen an argument for why the Treasury would be obligated to do (2) instead of (1) or (1) instead of (2). Seems to me that the Secretary of the Treasury gets to pick whether to impound the Social Security checks or to issue extra debt.

After the shit hits the fan the rubber might meet the road in one of three ways:

  1. A trial judgment by the Senate after impeachment of the Treasury Secretary or the President for failing to take care and spend money duly authorized and appropriated.

  2. A trial judgment by the Senate after impeachment of the Treasury Secretary or the President for breaching the debt ceiling.

  3. A court judgment after (a) a future administration refuses to pay debt in excess of the limit, arguing that the debt was not authorized by law, and (b) the debt holder sues to collect.

But let me once again stress that this is not liberal-vs.-conservative, not Democrats vs. Republicans. It is the Republican House that repealed the Gephardt Rule and thus prevented the automatic increase in the debt ceiling. It is the Republican House that passed the fiscal 2011 budget that requires the increase in the debt ceiling. The Republican House has commanded that the Treasury spend and not spend, that it borrow and not borrow.

Thus it seems to me hard to escape the conclusion that the Congress has punted what to do to the Treasury--and thus ceded to it enormous amounts of budgetary power.