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I first heard of the ’14th Amendment solution’ to the Debt Ceiling Crisis™ a couple days ago, so naturally my first reaction was: ‘Isn’t that the one about slavery?’ Of course, that’s the 13th, so boy did I feel stupid. I stupid!
The 14th, I then realized, must be the one the paleos hate because even though in context it presumably was intended to be about slavery and reconstruction it’s currently mostly cited by the Federal Government to assert a whole bunch of authority over states and destroy the old-timey republican vision. (There’s also something about equal protection bla bla bla which the left used to find convenient, but nowadays that is only for unpopular decisions hated by Smart People like Bush vs. Gore, so from what I can see it’s mostly used to undo Federalism and ensure Federal Government dominance.)
I still couldn’t quite figure out how that could be harnessed by a President to allow the debt-ceiling to be raised however; the debt-ceiling comes from Congress not states. What does equal protection or guarantee of citizenship have to do with the debt ceiling? Ah well. I’d just Google it later. Surely it all makes sense somehow.
Now I have Googled it and boy does this make even less sense than I’d assumed. They’re talking about this:
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.
That’s it. The debt’s validity ‘shall not be questioned’. But huh? I mean so what? I can totally not pay a debt without ‘questioning’ its validity. Hell, it happens all the time. It’s called bankruptcy: ‘yes I have a bunch of debts and they’re totally valid. I just can’t pay ‘em. Sorry your honor.’ To ‘not question the validity of’ my debt certainly doesn’t compel me to go borrow more money to pay it off. And that’s leaving aside the fact that, if you read this passage of the 14th Amendment in context, it’s pretty clear what it was really trying to convey was something more like this:
Ha, sorry, no we’re not paying the South’s bills. But you should still loan us money, we’re still totally good for our word and stuff.
So how/why can any of this be used to allow President Obama to ignore the debt ceiling? I don’t know. But then again, I’m not a “constitutional lawyer”, so I wouldn’t be expected to.
Anyway, this superficial reading-up I’ve done on the whole thing helped me come to another realization. All that’s really going on is that Congress has contradictory laws on the books. This is what infuriates Smart People, because they should just rationalize all laws and make there be One Law! Which, maybe so. But it doesn’t strike me as nearly as serious or (I suspect) rare a problem as they make it out to be.
It would be genuinely surprising if there weren’t contradictory laws on the books. The problem here is not just that people are naturally inconsistent, it’s also that ‘Congress’ is not a single person (there is no coherent ‘will of Congress’, there are votes taken by its individuals, each for their own reasons). And not only is Congress not a single person, but it’s not even a single Congress.
As far as I can tell, the first law in question, the one which causes there to be a debt ceiling at all, was created by the 1939 & 1941 Congresses, and the possibility of voting separately on raising the debt ceiling (or not) traces to rules created by the 1979 Congress. Let’s call this collection of Congresses, this group, Congress-A. The resulting conglomeration of laws passed by Congress-A is just as much the law of the land as anything else, and if you think there is such a thing as ‘the will of Congress’, then I hate to break it to you, but it’s that too.
But of course, ‘the will of Congress’ is also whatever spending bill(s) got passed in the year 2012 by the 2012 Congress, which let’s call Congress-B. Now, that’s a completely different Congress than the 1939, 1941, or 1979 Congress or Congress-A. Congress-B’s will is that Treasury scrounge up $X worth of spending to spend, and given that all Treasury can really do to get that money is collect authorized taxes and sell IOUs, and the taxes are what they are, then sure, that is effectively a command from Congress-B to Treasury to borrow money in an amount that exceeds the current debt ceiling set by Congress-A.
So go figure, we have a situation where two perfectly-valid sets of laws on the books are in conflict. But so what? Why would this be surprising or especially troublesome? Does it never happen? I’m sure it happens all the time.
And what’s worse, I see now that the Smart People have been trying to argue, in effect, that Congress-B’s law should automatically and unthinkingly take precedence over and supersede Congress-A’s law without need for further discussion or vote. The debt ceiling (the law Congress-A wanted and passed) prevents compliance with a command from Congress-B. So the debt ceiling should be ignored/abolished as a dead-letter.
But I don’t see why, and ultimately I actually think this argument works against them. That’s because it’s just not at all obvious why Congress-B’s law is any more compelling to follow than Congress-A’s law. The only argument I can see is that Congress-B’s law is more recent, so there. But that’s no good. Maybe Congress-A’s law was better and Congress-B is the one that needs to clean up their act? This requires some kind of moral judgment or other criterion on which to distinguish or reconcile the two laws. Is it really so obvious that the gigantic hot mess of spending bills passed by 2012′s Congress wins this competition, can be defended on their merits as ‘the law we should follow’? Not to me.
More to the point: not to Congress either. I mean after all, it would be obvious which law to follow if Congress itself – our Congress, the current Congress, Congress-B – were to pass a law saying ‘The funding requirements of our current spending commands should supersede any debt-ceilings previously passed.’ i.e., Raise the debt ceiling. Because of course Congress can revise, amend, or outright overturn previous acts of Congress, if that is truly their ‘will’. If our Congress were to do that – say, to abolish the debt-ceiling, or at least raise it with no resistance – then there’d be no argument.
But they haven’t done that. Since they haven’t done that, this works against the Smart People argument too: not only isn’t it obvious that ‘what Congress-B wants to spend’ should take precedence over ‘the debt limit Congress-A wanted’, but Congress-B itself hasn’t resolutely sent an unambiguous signal about ‘wanting’ to spend it, let alone have they overturned Congress-A. (Again – which they totally could if they wanted.) Congress-B is, in effect, schizophrenic about how much it wants to spend.
Again, this is not surprising, because again, ‘Congress’ is not a single person but a collection of persons. But any way you slice it this is highly problematic for people insisting that we must automatically follow the will of Congress-B. Which ‘will’ exactly? The one that wants Treasury to spend $X? Or the one that doesn’t want to let Treasury borrow enough to spend $X? There just is no coherent ‘will’ to be following here.
Which, if anything, is an argument for ignoring Congress-B (not Congress-A!) for being incoherent on this entire subject. The debt-ceiling stands and the spending bills do not. Haircut ‘em all, or something. If Smart People really insist on rationalizing these laws, that’s the most logical way to do it.
Who knows though, maybe that’s not the best way to reconcile these contradictory laws. And in practice, I’m not the one who needs to do it in the first place. Tim Geithner does.
So what do people do when laws are contradictory or unclear? They make a choice as best they can, and then stand up for that choice. Maybe it ends up in court and the law gets resolved there. Maybe this causes things to be thrown back to Congress, whose actions (or inactions) can help to resolve it. If Timothy Geithner thinks that the spending ‘Congress’ wants should happen and is more important than the debt-ceiling ‘Congress’ also wants, he should just go ahead and violate the debt ceiling and let the chips fall where they may.
Will someone prosecute him? Will he be impeached by Cojgress? Will there be noncompliance within the Treasury with such an order to issue more notes? Well, wait. Why would any of that happen? I thought Congress-B’s spending wants and desires so obviously took precedence over everything else, especially Congress-A’s stupid debt ceiling. That’s what Smart People think. That’s what Mr. Geithner thinks. So surely he is prepared to make that argument when something is on the line – and surely he’s confident he’d win the argument, if he’s so correct. Congress wouldn’t impeach him. Nobody would prosecute him. His underlings at Treasury would be pleased as punch to print more notes. What, then, is there for him to worry about?
It’s a form of civil disobedience: When laws are unjust, or even just irrational, or (as in this case) contradictory, they need to be violated and tested so that the lawmakers are forced to defend them (or not) or change them for the better. Feel free, Mr. Geithner, if you believe so strongly in the rightness of your position.
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