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View Diary: Why The Debt Limit Fight Will Be A Political Face-Off With No Gimmicks Or Constitutional Crisis (208 comments)

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  •  Thanks much. I worked as counsel for a House (33+ / 0-)

    committee for some years so all of that was very familiar to me.

    Further, affiant sayeth not.

    by Gary Norton on Mon Jan 14, 2013 at 12:42:36 PM PST

    [ Parent ]

    •  One problem, conflict of laws (6+ / 0-)

      Enforcing the law as a general concept sometimes breaks down on the details when laws conflict. If the U.S. fails to make good on its obligations many laws will be broken.

      Virtually all legal scholars believe that the President has a duty to enforce the law regardless of what he thinks about it because all laws that are duly enacted are presumptively Constitutional.
      Moreover, this assertion that duly enacted laws are presumptively constitutional reminds me of good Germans who were just following orders.

      look for my eSci diary series Thursday evening.

      by FishOutofWater on Mon Jan 14, 2013 at 01:04:40 PM PST

      [ Parent ]

      •  As I tried to explain, this does not involve (16+ / 0-)

        a conflict of laws. Rather it would involve the President declaring that a law is unconstitutional because it conflicts with his interpretation of a constitutional power.

        Some may not like the presumption of Constitutionality of the laws that are passed, but imagine the opposite. To begin with both Houses of Congress passed each law and each law was signed by the President. There has to be a presumption of constitutionality. If there were not, then no law could be enforced until it was upheld by a court. That, of course, is simply unworkable. Only a tiny fraction of the laws passed by the Congress and signed by the President are ever challenged in court on constitutional grounds.

        We are a country of laws, not men, and I am really glad for it.

        Further, affiant sayeth not.

        by Gary Norton on Mon Jan 14, 2013 at 01:10:01 PM PST

        [ Parent ]

        •  Many laws could be broken or unenforced (5+ / 0-)

          Your analysis is very narrow. The U.S. has many legal obligations that could be broken or unenforced if we don't meet our obligations because of the debt ceiling hostage crisis.

          Let us just imagine just one horrible scenario. Social security checks are not sent. Imagine the cascade of problems that would arise. Folks could die because of this.

          I get that this situation is political. I think this post does a good job in some areas, but I don't think that you've thought through the cascade of problems that could arise.

          I don't like this one little bit because it smells of a set up to cut Social Security and Medicare under duress created by a manufactured catastrophe.

          "Any money in the Treasury." Very soon if  Treasury cannot borrow money and put it in the Treasury, there will only be two dollars in the Treasury for every three dollars of bills coming due. Appropriations acts simply do not authorize let alone require the expenditure of funds that the Treasury does not have. There is no conflict between Appropriations Laws and the Debt Limit law. One tells Treasury how to spend money in the Treasury, the other limits how much can be borrowed to put money in the Treasury.

          look for my eSci diary series Thursday evening.

          by FishOutofWater on Mon Jan 14, 2013 at 01:36:24 PM PST

          [ Parent ]

          •  It's not a set up, it's the law. Treasury (12+ / 0-)

            cannot spend money it doesn't have. I am one of tens of millions who would be directly affected by a default. But you know what, until all the people affected by the totally irresponsible actions of the radical republicans wake up they won't change.

            Further, affiant sayeth not.

            by Gary Norton on Mon Jan 14, 2013 at 01:44:35 PM PST

            [ Parent ]

            •  Of course it's a political set up. (6+ / 0-)

              Democrats started this hostage crisis nonsense by not raising the debt ceiling when they had control of the House. Obama does not get a free pass. He and Pelosi enabled this series of hostage crises to start.

              Obama has repeatedly stated that he wanted to "modernize" Social Security in a third way kind of way. But without a crisis, he can't get away with it. That makes this a set up.

              Saying " It's the law" is patently absurd.

              Drone strikes on America kids used to be illegal. The President went way out of line in Yemen when he took out someone who was not actively engaged in physical hostilities...and the teenager who was with him.

              Obama has interpreted "the law" creatively to allow him to do extrajudicial killings of American citizens. The executive branch always has the ability to interpret "the law".

              You are clearly very good at "the law".  You have carefully established the parameters of your discussion to achieve the intended result. Nice work.

              look for my eSci diary series Thursday evening.

              by FishOutofWater on Mon Jan 14, 2013 at 02:10:19 PM PST

              [ Parent ]

              •  Thank you for noticing this! (2+ / 0-)

                it's the first thing I thought of, unfortunately. "Without a crisis", he can't "modernize" it.

                Obama has repeatedly stated that he wanted to "modernize" Social Security in a third way kind of way. But without a crisis, he can't get away with it. That makes this a set up.
                And because it's relevant to your comment, I'm commenting here further.

                From the diarist:

                the President knew that both internationally and domestically taking either of those actions would be viewed as a gimmick
                What people "view" as a gimmick is irrelevant. The law is the law.

                The 14th Amendment is a lawful option. The platinum coin is a lawful option.

                Yet the President has already stated he won't avail lawful options at his disposal.  He is bound by the Constitution. If he won't follow it by using the tools at his disposal, tools granted by that Constitution to the President of the United States, then we've got a big problem here.

                It is time to #Occupy Media.

                by lunachickie on Mon Jan 14, 2013 at 03:21:48 PM PST

                [ Parent ]

                •  Now that is true (5+ / 0-)

                  Gary doesn't rule out either if the other two options.  Obama did that.  He is taking on this crisis because he wants to

                  Now we shall see whether he is simply calling Boehners bluff (only a clean debt limit rise gets his signature and through the Senate) or if it an excuse to cave.  This time I think it's the former actually.  Not sure why, but that is what would make sense to me.  

                  Hay hombres que luchan un dia, y son buenos Hay otros que luchan un año, y son mejores Hay quienes luchan muchos años, y son muy buenos. Pero hay los que luchan toda la vida. Esos son los imprescendibles.

                  by Mindful Nature on Mon Jan 14, 2013 at 06:34:41 PM PST

                  [ Parent ]

                •  It's politics. The views of the people matter (1+ / 0-)
                  Recommended by:
                  Quicklund
                  What people "view" as a gimmick is irrelevant.
                  If enough people view it as a gimmick, then Obama and the Democrats and the agenda we want passed will suffer greatly.  If the people view the Republicans as bringing down the government for their own selfish ends, then they will suffer.

                  "But the problem with any ideology is that it gives the answer before you look at the evidence." - President Clinton

                  by anonevent on Mon Jan 14, 2013 at 07:04:05 PM PST

                  [ Parent ]

                  •  The law is the law (0+ / 0-)

                    regardless of what the people think. It's not like it's hard to see that. Explained correctly, Americans would certainly understand if their President didn't want their economy to tank completely--and there were perfectly legal remedies available to him.

                    If he didn't use them, and the economy tanked--say, to Depression levels--they would ask "Why didn't he do something??"

                    As they should. As we all should.

                    Now, if you want to make the argument that the Corporate Information Services would flog The Great Gimmick as a meme until it reached Tea-Party-like proportions, that's something else entirely.

                    It is time to #Occupy Media.

                    by lunachickie on Mon Jan 14, 2013 at 07:17:25 PM PST

                    [ Parent ]

              •  Wow (3+ / 0-)
                Recommended by:
                Gary Norton, Quicklund, MichaelNY

                It is sad to see supposed liberals take such a firm stance against the rule of law.  Here the statutes are duly enacted and thus constrain the president.  The drone strike analogy is a bad one since the text of the law unclear.  Here the statutes themselves are pretty clear.  You may not like the result (I don't) but it is what the words say.  Sorry they don't comport with your vision

                Hay hombres que luchan un dia, y son buenos Hay otros que luchan un año, y son mejores Hay quienes luchan muchos años, y son muy buenos. Pero hay los que luchan toda la vida. Esos son los imprescendibles.

                by Mindful Nature on Mon Jan 14, 2013 at 06:32:03 PM PST

                [ Parent ]

              •  Many Confederate soldiers (0+ / 0-)

                and American Indians were killed extrajudicially in the 19th century.

                Vicksburg and Fredericksburg were shelled.

            •  It occurs to me that President Obama (3+ / 0-)
              Recommended by:
              Gary Norton, MichaelNY, llywrch

              may not be able to pay all of the US' bills if the debt limit is not raised, but he will have effectively absolute control over the prioritization of the bills that do get paid.

              If that's true, he should be able to inflict a significant amount of pain on the people who are most likely to pressure the Republicans, quite rapidly.

          •  Law is a narrow business (10+ / 0-)

            Before determining that two laws conflict, such that one must give way, Courts (and the President's counsel) will read the two laws to see if they can be reconciled.  Gary's reading of the appropriations language is kind of a slam dunk easy reading that allows both the appropriations law and the debt ceiling to operate.  That is, if the appropriations does not command the president to spend moneys not in the treasury, but only commands expenditure of money in the treasury, both statutes are saved and neither need be struck down.

            In a certain sense, the "just following orders" is exactly what the rule of law entails.  Once Congress enacts the law, then within the rule of law, the authorities are bound to follow it.  In otherwords, police, judges, citizens, and the president can't just ignore the law because they feel like it.  (which is where signing statements are so questionable).  

            And finally yes, many bad, bad consequences would follow from Congress enacting such a stupid policy.  however, that's the decision of the Congress to make taht call, not the President or the Courts.  Why?  Because Congress are the duly elected representatives of the people with the duty to make such decisions.  If the American people saw fit to elect scoundrels who would wreck the US economy, then that is a decision of the American people, not the president or the courts.

            All the language you cite says is that the loophole from reading the statutes as conflicting won't work as a matter of law.  It's a bit like finding a provision of the platinum coin law limiting denominations to $50.  If that language were in that law, that option wouldn't work either.  (I say this as someone who was a big fan of the approach Gary shoots down here).

            Yes, it's narrow.  Yes, it fails to solve the problem.  However, law must operate narrowly to implement the will of congress or that will of congress would be too easily thwarted.

            hope this helps make sense of what law can and can't do here.

            Hay hombres que luchan un dia, y son buenos Hay otros que luchan un año, y son mejores Hay quienes luchan muchos años, y son muy buenos. Pero hay los que luchan toda la vida. Esos son los imprescendibles.

            by Mindful Nature on Mon Jan 14, 2013 at 02:06:14 PM PST

            [ Parent ]

        •  Can he not take it the SCOTUS to decide legality (3+ / 0-)
          Recommended by:
          Gary Norton, kaliope, MichaelNY

          of the debt limit and the conflict resolution. Isn't that a prime duty of SCOTUS? Please note I am NOT a lawyer  but you sound knowlegible. I love these fabulous diaries that impart some clarity.

          Fear is the Mind Killer...

          by boophus on Mon Jan 14, 2013 at 08:23:22 PM PST

          [ Parent ]

          •  The short answer to a very complex question (6+ / 0-)

            is yes, this could be taken to Court. But he does not want to do that because it doesn't address the problem he wants to solve and that is ending Republican hostage taking. Remember, after this there is the continuing resolution and next year's appropriations bills.

            Further, affiant sayeth not.

            by Gary Norton on Mon Jan 14, 2013 at 09:05:37 PM PST

            [ Parent ]

            •  Thank you for your answer & great diary (3+ / 0-)
              Recommended by:
              Gary Norton, PeterHug, MichaelNY

              Fear is the Mind Killer...

              by boophus on Mon Jan 14, 2013 at 09:17:53 PM PST

              [ Parent ]

            •  There is another aspect: the "live controversy" (1+ / 0-)
              Recommended by:
              MichaelNY

              The Supreme Court does not issue advisory opinions. It would be necessary for us to have reached and passed the debt ceiling, for the President to have taken some particular action, and for that action to be contested. Only THEN would the Court issue a ruling on the legality of the President's action in light of an apparent conflict between the laws. This would be a very, very risky step for either the Congress or the President to take. The Court's ruling would be final; it would benefit one side or the other and the losing side would lose big.

              •  There is a law, the Declaratory Judgement Act (1+ / 0-)
                Recommended by:
                sfbob

                under which Treasury could seek a ruling in District Court and if they loose get an expedited appeal to the DC Circuit. I doubt the Constitutional "case or controversy" requirement, referred to as standing, would present a bar. But, as I said, it's a lot more complex.

                Further, affiant sayeth not.

                by Gary Norton on Tue Jan 15, 2013 at 01:22:02 PM PST

                [ Parent ]

                •  Ah then... (1+ / 0-)
                  Recommended by:
                  Gary Norton

                  You are the one better versed in these things.

                  Regardless however I'd maintain the second part of my argument which is that it would represent a huge risk and there is, as far as I can discern, no compelling reason why either side would want to take that risk...unless of course one of those sides is simply crazy.

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