Saturday, July 23, 2011
Eric Posner and Adrian Vermeule argue that President Obama should raise the debt ceiling on his own:
PRESIDENT OBAMA should announce that he will raise the debt ceiling unilaterally if he cannot reach a deal with Congress. Constitutionally, he would be on solid ground. Politically, he can’t lose. The public wants a deal. The threat to act unilaterally will only strengthen his bargaining power if Republicans don’t want to be frozen out; if they defy him, the public will throw their support to the president. Either way, Republicans look like the obstructionists and will pay a price.
Where would Mr. Obama get his constitutional authority to raise the debt ceiling?
Our argument is not based on some obscure provision of the 14th amendment, but on the necessities of state, and on the president’s role as the ultimate guardian of the constitutional order, charged with taking care that the laws be faithfully executed.
I hate to raise the fascism charge, but if it fits, why not? This is not the ridiculously overused and misused fascist charge of the left, but the far more powerful one of the classical liberal. I am sure that Posner and Vermeule would say, "Oh come on! Presidents have take such actions in the past and the country still has its liberties." It is true that Presidents have done this before, but they have helped weaken the country's liberties. Lincoln, Wilson, and Roosevelt made the government bigger and relaxed the restraints on its actions. If Posner and Vermeule's encouragement is taken to heart, one day we might become a fascist, or if you will, neo-fascist country.
I am not sure exactly when these movements toward excessive presidential power first occurred. Certainly, it had happened by the New Deal. Almost certainly not by the end of the 19th Century (except for some excesses from Lincoln). Perhaps Woodrow Wilson and World War I did it. But the country became less free at this time, and the connection with big government is no accident.
The debt ceiling issue requires the parties to negotiate. And it is part of the tradition of liberal democracy that such negotiation is better than imposition, especially by Presidents.
Perhaps Obama would get away with it politically, although perhaps not. I am not as sure as Posner and Vermeule that the country wants an unlimited debt ceiling increase. In any event, if Obama took the action the way that Posner and Vermeule say he should do it, the best response might be for the Republicans to watch him do it. And then with the debt ceiling issue put to the side, to bring impeachment proceedings in the House.
In the end, let me leave you with the words of someone -- Justice Robert Jackson -- who resisted such presidential excessiveness, when Truman seized the steel mills during the Korean War. No doubt, Posner and Vermeule would have approved of Truman's action. But the Supreme Court said no, and the country was not the worse for it.
While I believe that Justice Jackson's concurrence has had too much of an influence on constitutional law, since I don't believe he correctly captures the constitutional allocation of power, his political theory has something to say for it and explains what would be so dangerous if Obama disregarded the law. As Jackson said,
With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.