The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

Saturday, July 23, 2011

Posner and Vermeule on the Debt Ceiling
Mike Rappaport

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.

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Comments

Ahh, yes, he had to destroy the Constitution in order to save it.

Posted by: toooldforthiscrap | Jul 24, 2011 5:44:16 AM

He can act unilaterally and then dare Congress to impeach him. Congress would lose and that would centralize more power in the executive then if Congress caved and raised the debt limit themselves.

As for power being concentrated in the executive, that has to do with the growth of the state in the 20th century. The growth of the state in the 20th century is driven by a logic that is bigger than US politics and is probably beyond correction.

Posted by: molly | Jul 24, 2011 11:07:27 AM

It's instructive to consider the reign of William I of Prussia. Although the foreign policy of Prussia was nominally under the control of its parliament, with the assistance of Bismarck, William I worked against the express wishes of parliament and engaged in the series of wars and diplomatic maneuvers that created modern Germany. To say the least this has been mixed blessing for Germany and her neighbors.
An executive who is also commander in chief is hard to constrain. Give him the power to spend state money as he wishes and we might as well send congress home.

Posted by: Terry | Jul 24, 2011 11:45:12 AM

I think I will try to recommend this post to my friends and family, cuz it’s really helpful

Posted by: Dvd Box Set | Jul 25, 2011 2:27:13 AM

This certainly would crystallize the problems with the Obama Adm. wouldn't it?

Posted by: mike livingston | Jul 25, 2011 6:45:08 AM

In practice we have a system where Congress either acts as a check or enabler of the president. That probably was not what was contemplated in the constitution. Given the reality of the federal government's power, however we are stuck with that arrangement. You would have to dismantle the federal government in order to weaken the executive. Or you could keep the kind of state we have evolved over the last 4 generations and work out a whole bunch of other checks on the executive. Impeachment is one, recall is another that could probably be added, etc.

Posted by: molly | Jul 25, 2011 9:35:52 AM

The North Face

Posted by: The North Face | Jul 26, 2011 7:30:53 PM

This is absurd. We are not in a national emergency, such as a surprise nuclear was. The Republic will survive if a few former schoolteachers and former I.R.S. employees have to take some vegetable-picking jobs from the illegal aliens.

The essence of the republican form of government is that the legislature retains the power of the purse. English and French constitutional history address what happens when kings try to force Parliament and Estates General to come up with money for them. People lose their heads over things like that

Posted by: Lou Gots | Jul 28, 2011 5:53:51 PM

People lose their heads because they lose civil wars. If you want to argue over the meaning of the French Revolution and English Civil War I am game.
That being said the last few months have been the teaparty alienating the moderates in return for concenssions on domestic spending which hopefully will be reneged on. Romney who will run for the GOP in 2012 finally slithered out of his hole today to condemn the president, which is kind of a dog bites man story.

Posted by: molly | Aug 1, 2011 2:59:21 PM