ABA Journal


Constitutional Law

Can Obama ignore the debt ceiling? Three constitutional arguments provide a ‘yes’ answer

Oct 4, 2013, 02:57 pm CDT


What really keeps Obama from doing this is, in fact, a very practical consideration.

If the debt has any possibility of being legally invalid, investors won't be able to have confidence in it.

By Anonymous on 2013 10 04, 4:05 pm CDT

1. The Constitution does not permit Obama to ignore the debt ceiling.
2. The comment @1 is absolutely correct I would add that were Obama to issue new debt without a Congressional approval there would have to be a significant risk premium added to get someone to buy the debt.

By Yankee on 2013 10 04, 6:15 pm CDT

@2 - I'm in agreement with you here, constitutionally-speaking. I have a hard time reading the text and history of the Fourteenth Amendment as affirmatively departing from the Founders' understanding that the Legislature controlled the purse-strings.

Now, that having been said, one of the Executive's most practical checks against the Legislature's control of the purse-strings is that if the Legislature fails to fund the Judiciary sufficiently, then it becomes much more difficult to control an Executive that acts outside of his or her scope of power. E.G. -- "Yes, I'm doing this. You could sue me to stop me, but you'd have to fund the government first so that the courts can open."

That isn't a check I want to ever see really put into action, though. I prefer a weaker Executive and a functioning Legislature with an active Judiciary. That's not what the Founders intended, but that's my opinion. (I don't personally feel bound to follow their vision, since they explicitly indicated in the Convention Notes that future, wiser generations would strike the balance better.)

By Anonymous on 2013 10 04, 6:29 pm CDT

It's disappointing that the ABA would attach its name to a paper advocating destroying the rule of law.

By associate on 2013 10 04, 6:44 pm CDT

We get it; the ABA is in favor of a dictatorship, as long as the dictator is a nice guy named Obama.

Can we now please return to advocating turning us into a dictatorship LEGALLY? Like by amending the Constitution to give the president the power to make law?

By associate on 2013 10 04, 6:46 pm CDT

@3 By the way, the commenter of ancient memory who went under the moniker "Another Andy" was a big fan of the Convention Notes and referred to them often.

By Yankee on 2013 10 04, 10:31 pm CDT

Yankee, why do you keep referring to Anonymous as Another Andy, as if you had anything to do with first noting the similarities between the two commenters? You pounce on a connection another person makes, then parrot it ad nauseum dissimulating as if you have some measurable capacity for deduction. Give it up already.

By NoleLaw on 2013 10 05, 1:56 pm CDT

@7 NoleLaw: I was only providing data point, TO WIT, the only commenter - - other than "Anonymous" (cough, cough) - - - who has ever cited the Convention Notes was that commenter seemingly lost to antiquity who had the handle: "Another Andy."

By Yankee on 2013 10 05, 2:47 pm CDT

Well there is the question that Congress has already authorized this debt by passing appropriation measures and authorizing pensions under the Social Security and Railroad Acts and other pension plans covering federal employees and for that matter former members of Congress. So under the 14th Amendment the President may have the right to ignore the debt limit as to those obligations already incurred as opposed to new obligations. In any event regardless of one's political persuasion, if you want to change laws the Constitution specifies how that is to be done. If you don't have the votes you go about the business of government and you try to win the next election. Something the corporate party had not learned.

By George Sly on 2013 10 06, 6:41 pm CDT

This is an interesting legal issue and it absolutely belongs on the news feed. Just because we don't agree with an idea or a legal position does not mean that the ABA should refuse to report on it.

By Island Attorney on 2013 10 07, 1:34 am CDT

George: It will be interesting to see who purchases new U.S. sovereign debt issued without regard to the Congressionally established debt ceiling and the risk premium bond holders will demand in exchange for the good possibility they won't get paid.

By Yankee on 2013 10 07, 3:20 am CDT

Congress could always retroactively recognize the debt, of course.

But that would require freeing it from the minority rule it's apparently under.

The Constituionally-intended mechanism isn't working here.

But do two wrongs make a right? Or will it just further entrench those trying to destroy our government?

By Anonymous on 2013 10 07, 12:35 pm CDT

But the Constitutional-intended mechanism is working, 'Mr. Anonymous'.

The default position on spending and borrowing issues is nothing gets spent or borrowed unless the defined levels of consent are reached.

The way out of this situation involves actual negotiations, and the requisite give-and-take between Mr. Obama and Mr. Boehner, to find a middle ground. That is what the Founders intended.

Mr. Obama and Mr. Reid really need to stop their Thelma & Louise routine, and start acting like statesmen. Incendiary rhetoric and a refusal to negotiate isn't getting us anywhere

By Yankee on 2013 10 07, 2:18 pm CDT

Actually, I think there's a very strong argument that using a procedural maneuver to block a house of Congress from even taking a vote is not appropriate government under the Constitution. It certainly wasn't "intended."

I would propose that any procedural loophole that allows a minority of the Legislature to shut down the entire government is not Constitutionally sound. But then, that's only my opinion.

In my opinion, it would be a terrible mistake for the President to negotiate with the GOP over this. It would set a precedent that I don't think we want. Whether you like the law or not, the appropriate way to get rid of legislation that has been enacted properly by a sitting Congress, signed by the Executive, and deemed constitutional by the Supreme Court is repeal. Our system was not designed to give a minority another bite at the apple when it lacks the votes for a repeal.

I think it's a terrible shame that this is a partisan issue. If the tables were turned, I wouldn't want the Democrats to undermine the integrity of our legislative system either. I don't understand why we can't all see what a serious problem this is if this becomes a new option for a party that doesn't like having lost on an issue.

By Anonymous on 2013 10 07, 2:48 pm CDT

Who knows if he can but he shouldn't. But, as a cost saving measure, Obama should direct federal agencies to redirect spending away from the geographic regions of the tiny minority who voted in the maniacs that refuse to fund the government or pay their own debts. Close or move military bases, federal research facilities; really anything that provides jobs from the federal government. There's plenty of districts that elect semi-rational leaders who could use the jobs. Being good "conservatives" -- because, you know, not paying one's debts is very conservative and all -- I'm sure the tea party crowd won't mind.

By Michael on 2013 10 07, 3:11 pm CDT

The political problem is that this law, which asserts control over 18% of the economy, was enacted by the 111th Congress, at a point in time when the Democrats held a temporary majority in both Houses. (EVERY majority is necessarily temporary.) Although the Democrats may well not have thought it through, the law implicitly requires support of future Congresses for appropriations where those majorities were by definition not guaranteed.

Unlike Medicare which was broadly supported when enacted and continues to be broadly supported to this day, Pelosi, Reid and Obama knew this law was was a cram down when enacted in 2010 and that a similar level of broad support did not exist. Whether the decision of this threesome to move forward nonetheless was the result of a political calculation that board support would eventually materialize or mere indifference I can't say, but what I can say is that where we are today is the result of decisions they made more than three years ago.

By Yankee on 2013 10 07, 3:27 pm CDT

But you realize, what you've basically said is, "It's ok this time because this minority *really* doesn't like this law."

It just doesn't work like that.

By Anonymous on 2013 10 07, 3:50 pm CDT

@17 - I think the proper emphasis in his argument is more like: “It’s ok this time because *this* minority really doesn’t like this law.”

By NoleLaw on 2013 10 07, 4:01 pm CDT

Given the fact that the government is shut down, it apparently does work like that.

By Yankee on 2013 10 07, 4:01 pm CDT

Quite a leap from the ABA reporting on this story: "Carney says the Constitution gives only Congress the authority to borrow money, and only Congress can increase the debt ceiling. But some law scholars say the Constitution authorizes President Obama to continue borrowing after that ceiling is reached, the New York Times reports."


The ABA supports dictatorship.

Hysterical, reactionary and angry much?

By Paul the Magyar on 2013 10 07, 4:21 pm CDT

I made the mistake that he cared about the functioning of our government and our political system beyond the immediate, selfish desires of one particular political group again, didn't I?

By Anonymous on 2013 10 07, 4:38 pm CDT

But I do care. Deeply.

When I noted several comments back that that the Constitution's implicit default setting in the absence of obtaining the constitutionally defined levels of consent for spending and borrowing decisions is No Spending and No Borrowing, I was pointing you in the direction of what is required here, namely, politicians getting together to discover those broad areas of consensus.

And there are broad areas waiting to be discovered and which will obtain those defined levels of consent.

A Smash-mouth, Cram-down, in-your-face approach won't get us to where we need to be.

By Yankee on 2013 10 07, 5:36 pm CDT

If you have a procedural challenge that makes the passage of the law invalid, I suggest you bring it.

Otherwise, none of your opinions on it, or how it was considered or drafted, affect the fact that it is the law of the land.

By Anonymous on 2013 10 07, 5:49 pm CDT

Here's my Unified Field Theory of what's going on politically.

The Tea Partiers finally recalled that Germany's Far Right Nationalists were able to get elected to full power in 1932 after the utter collapse of the German economy during the Weimar Republic years.

Now they want to replicate that process in the USA, looking for the same payoff. So, don't expect any of them to vote for raising the debt ceiling anytime soon.

By AndytheLawyer on 2013 10 07, 5:51 pm CDT

@24 - First unified theory of what they're doing that makes sense and doesn't make them look like spoiled children.

By Michael on 2013 10 07, 5:57 pm CDT

Although ObamaCare may be the "law of the land" (whatever that might mean beyond the fact that its provisions are incorporated into the United States Code), the debt ceiling is also the "law of the land" as was the recently expired 'Continuing Resolution' under which the government had been operating.

By Yankee on 2013 10 07, 6:00 pm CDT

@21 - We've all made that mistake. One thing that no one should doubt after this government shutdown fiasco is that the Tea Party faction of the GOP is in no way tied to any notion of representative government.

One positive I hope results from this shutdown is that people realize the consequences of a corrupted electoral system. Perhaps some steps will be taken to fix it.

By NoleLaw on 2013 10 07, 6:05 pm CDT

@Anonymous #14 - hear hear! I agree.

If the debate was the tea party/Republicans saying "we want everything funded at 60% of last year" and the democrats saying "we want everything funded at 110% of last year," THAT would be a negotiable issue. But that doesn't seem to be the problem here. The problem seems to be a tantrum being thrown by a minority that doesn't have enough votes to repeal a law, but wants to nullify it anyway. Because THEY believe that THEY have a majority of folks in the nation behind them because THEY say so and believe so.

By RecentGrad on 2013 10 07, 6:17 pm CDT

@24 "Far Right Nationalists were able to get elected to full power in 1932"???

German history isn't your strong suit is it?

By Yankee on 2013 10 07, 6:18 pm CDT

#29 -- Well, if von Hindenberg hadn't been elected President in 1932, HItler would never have been appointed Reichskanzeller in 1933.

Byt my bedrock point stands......the collapse of the German economy was required for both to occur, and that is what the Tea Partiers seek for the same reason. Thank you for not refuting it.

By AndytheLawyer on 2013 10 07, 6:44 pm CDT


I think the point is that Yankee has consistently refused to recognize that the Nazis were a Far Right movement. And of course, one could argue that an oblique reference to Nazism still implicates Godwin's law.

By OKBankLaw on 2013 10 07, 7:18 pm CDT

Well said, #28, RecentGrad.

"Because THEY believe that THEY have a majority of folks in the nation behind them because THEY say so and believe so."

Yes, and this is based on gerrymandered districts which all but ensure that these obstructionist representatives will be re-elected no matter what extreme position they take and how it affects the country:

"Before the 2010 election, conservatives launched a plan to win control of state legislatures before the census. The idea was to be in power when national congressional districts were redrawn in order to fix them so Republicans would win a majority of districts.

The Redistricting Majority Project was hugely successful. In 2012, Barack Obama was elected President by nearly 3.5 million votes. In Congressional races, Democrats drew nearly 1.4 million more votes than Republicans yet Republicans won control of the House 234 seats to 201 seats.

How is this possible?

By pumping $30 million into state races to win the legislatures, Republicans redrew state maps in states such as Arizona, Michigan, North Carolina, Pennsylvania, Virginia, Texas, Florida and Ohio to place all of the Democrats into just a few districts.
In this manner, Democrats win heavily in a couple districts and lose the rest.

In North Carolina, the statewide vote was 51 percent Democrat and 49 percent Republican yet 9 Republicans won and only 4 Democrats."

By Paul the Magyar on 2013 10 07, 7:27 pm CDT

Yes, given the fact that the National Socialist Workers Party of Germany was, well, 'socialist', you can imagine why I might reasonably believe they were part of the political left.

Also, given the fact that their party platform supported nationalism of health care and other industries, and their message was couched in terms of us-versus-them class welfare, you can clearly see why I believe they resemble one of the political parties in this country more than the other.

By Yankee on 2013 10 07, 7:39 pm CDT

It is a facile and incorrect conclusion that the use of the word "socialist" by the Nazi party automatically equates to a leftist agenda.

There is economic liberalism and there is economic nationalism. In effect, the Soviets AND the Nazis engaged in economic nationalism. There was nothing of classical liberalism in what the Nazis professed or practiced. There was nothing of classical liberalism in what the Soviets professed or practiced.

By Paul the Magyar on 2013 10 07, 7:49 pm CDT

It would be extremely bad to wreck our credit rating and status as the worlds' reserve currency to try to get a law changed in a manner that is completely out of line with normal practice. I just don't think we come out net ahead financially as a nation after doing something so, well, financially goofy.

On the other hand, the tea prty perspective is that it isn't really destruction, but a rebirth, getting back to a more sure-footed economy.

I'd say it's more like, "in order to save the village, we had to burn it down."

This is why we can't have nice things!

By defensive lawyer on 2013 10 07, 7:55 pm CDT

@33 - It is true that there were leftists, even radical ones, who were prominent Nazis during the party's rise to power. However, the left in the Nazi party was largely sidelined during the early 30's when Hitler realized that he would need the backing of big business to get into power. Unsurprisingly, magnates such as Krupp and others would have been unwilling to support a leftist. Strasser suffered from this decisive shift of the Nazis to the right; Goebbels gave up his leftist leanings and thrived at Hitler's side.

The Nazi's actions after consolidating power obliterate the myth that the party was socialist in any meaningful understanding of the word: Junker estates were left largely in tact for a long time, captains of industry flourished, real wages of workers continued plummeting, and any meaningful rights of workers to organize and negotiate over terms of labor was abolished. I'm sure Nazi economists would have insisted, however, that German workers retained the right to work.

Hitler personally seems to have had little understanding or interest in economics by the way, except to the extent he needed to fund first his rise to power and then the militarization of Germany. One of his notable quotes, however, was "we stand for maintenance of private property. We shall protect private enterprise as the most expedient, or rather the sole possible, economic order." Granted, Hitler would say anything at anytime if it was politically expedient, but this is hardly a thing a committed socialist would say, don't you agree?

Yankee, you fail at rudimentary critical thinking. Hitler invoked God and Christianity many times; would you say that Nazism was a Christian movement? Go read a book.

By NoleLaw on 2013 10 07, 8:01 pm CDT

Well, Paul, I sure would not want you to think me as 'facile.'

I will only note that nothing about modern American 'liberalism' that remotely resembles 'classic liberalism'

By Yankee on 2013 10 07, 8:03 pm CDT

@36 You assert: "Hitler invoked God and Christianity many times."

You're correct. For example,

"The heaviest blow that ever struck humanity was the coming of Christianity. Bolshevism is Christianity's illegitimate child. Both are inventions of the Jew. The deliberate lie in the matter of religion was introduced into the world by Christianity.... "

'Christianity is a rebellion against natural law, a protest against nature. Taken to its logical extreme, Christianity would mean the systematic cultivation of the human failure."

"The reason why the ancient world was so pure, light and serene was that it knew nothing of the two great scourges: the pox and Christianity."

"There is something very unhealthy about Christianity."

By Yankee on 2013 10 07, 8:13 pm CDT

Wow, you can Google. I see you've given up the ridiculous notion of Nazism as a leftist ideology. Good. For your next assignment, find positive quotes from Hitler's point of view on God and Christianity. Here's a start -

“Hence today I believe that I am acting in accordance with the will of the Almighty Creator: by defending myself against the Jew, I am fighting for the work of the Lord.”

"As a Christian I have no duty to allow my self to be cheated, but I have the duty to be a fighter for truth and justice."

By NoleLaw on 2013 10 07, 8:26 pm CDT

Hitler killed 3 million Christians.

He was an anti-Christian leftist of the highest order.

By Yankee on 2013 10 07, 8:31 pm CDT

Please, please keep on-topic. I declare Nazis to be off-topic. Return to the topic of the article, or comments will be closed.

- <b>Lee Rawles
Web Producer</b>

By Lee Rawles on 2013 10 07, 9:05 pm CDT

Well, I'm not really sure it's a matter of "ignoring" the debt ceiling in any event. Though I would say that if Congress fails to raise the debt ceiling, the members are in violation of their consitutional duty.

I refer to Article 1, Section 8, Clause 1 which states in relevant part: "Congress shall... pay the Debts... of the United States..."

So, failure to pay the debts would be a violation of their duties under the Constitution, and, I would think, grounds for Impeachment proceedings.

Before Yankee blows an anuerism, I'd point out that my definition of "Shall" is the same as his when he utters the words "Congress shall make no law..."

By OKBankLaw on 2013 10 07, 9:18 pm CDT

I guess the thesis is that FDR was a conservative. Good to know.

By Paul the Magyar on 2013 10 07, 10:02 pm CDT

You're confused: Debt is not a debt of the United States unless it is authorized by Congress.

New debt issued by Obama in violation of the debt ceiling established by Congress would involve an ultra viers act in his part and by definition not debt of the United States. Such debt would have the same legal status and value as Monopoly money.

If you wanted to understand Obama's authority here, let me suggest you review Article 2 rather than Article 1

By Yankee on 2013 10 07, 10:07 pm CDT

This is another area where the crazy behavior of a faction in the house could accidentally knock another crazy behavior in the head.

The only reason a "debt limit" poses the risk of debt "default" is that the government is "repaying" debt and covering debt service by ever-increasing borrowing, like a fast food worker, sliding into insolvency while staggering from payday loan to payday loan.

We need to stop the ever-increasing borrowing. We need to stop spending what we don't have. If this insane Obamacare debate derails the crazy train, that will be the silver lining.

By B. McLeod on 2013 10 08, 5:54 am CDT

The 14th Amendment states @ Section 4. 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. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. (This was partially quoted in the ABA excerpt.)
But the 14th Amendment states in Section 5. "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." This gives Congress, not the president the power to enforce.

By Pacific on 2013 10 08, 8:50 am CDT

Since the president presented budgets which Congress refused to accept. There has been no budget since 2008. Our government has no spending plan.
Then Obama's party in the dead of night during a lame duck session passed Obamacare, without debate, only to have Obama unilaterally by executive order changes to Obamacare provisions benefiting big businesses and government officials.
Obamacare was never provided for in any budget process, thus government expenditures with other unauthorized expenditures is causing our debt to grow exponentially. (This is no different than if my spouse were to unilaterally spend money from our joint account wiping out any reserves and incurring debt in the process.)
The 14th Amendment provides that CONGRESS has the right to enforce debts that should not be questioned. For the President to usurp Congress in this matter violates the separation of power doctrine.
To my knowledge no president has ever used emergency powers to raise the debt ceiling. This coupled with Obama and his party failure to follow Constitutional and legislative provisions, IMHO are grounds for impeachment.

By Pacific on 2013 10 08, 9:17 am CDT

The Affordable Care Act, Obamacare, was passed "in the dead of night .. without debate?" When I hold my hand in front of my face I count five fingers and, no matter what a Tea Partier tells me, I won't give a different number. Similarly, I remember a fierce ongoing debate and won't allow historical revisionists to change reality.

I also remember a filibuster that should have been handled like the Bush tax cuts: the filibuster rule should have been placed on hold -- changed with a majority vote -- and Obamacare should have been rammed through as a single payer system. Given the amount of whining since it's obvious any compromise -- and there were many compromises; too many in my opinion -- was for naught.

I've had it with minority rule in this country. Ever since GW stole the presidential election Republican's have been openly abusing the shrinking number of votes they receive and now have the arrogance to dictate with a 49.5% "majority" in one house of Congress. Republican behavior is anti-democratic, goes against the letter and spirit of the Constitution, and sets a terrible example for other countries.

By Michael on 2013 10 08, 12:40 pm CDT


I'm not confused. If congress authorized an expenditure (which they did by the various CRs they passed), that's what in the business world would be called an "accounts payable", i.e. a bill that you have agreed to pay but not yet paid for. That's a form of "debt" as you owe the money. Now, if later on you say, I'm not going to use my credit card (a different form of debt) to pay the bill (the first form of debt) then you're not paying your debts. Of course, if you don't pay your credit card, you're still not paying your debts, but that's not what the discussion is about.

By OKBankLaw on 2013 10 08, 1:31 pm CDT

@48 Michael: I get the fact that you're frustrated that things are not going as you hoped. At some level, I emphasize with you.

With that said, when you advise a strategy that would have a law "rammed through" - - however good that may make you feel at the time - - you are sowing the seeds for an eventual policy failure.

The Affordable Care Act was extremely unpopular among a significant segment of the population when it was enacted and continues to be so to this very day. It was, in fact, "rammed through" the 111th Congress; indeed, the second session of the 111th Congress, but not before much time and blood was spilled.

The reason a single payer system wasn't passed is not because Obama was reaching out to legislators on the other side of the aisle, but rather because Obama did not have the votes from his side if the aisle to pass a single payer system.

Our form of government is predicated upon the consent of the governed. True consensus building involves getting more than 51% of the vote at a particular moment of time. Indeed, given the fact that the political winds are constantly shifting, the idea that you can make a major, permanent change in our economy and culture based upon a thin, temporary majority borders on foolishness.

Obama, Reid and Pelosi are the authors the current crisis in Wahington.

By Yankee on 2013 10 08, 1:31 pm CDT

I mean, you can say that all you want, but most of the American people disagree with you.

You're doing everything you can to avoid the conclusion that the law was properly, legitimately passed and that the only legitimate method of doing away with it now is repeal.

There are no "but I really don't like this one and I want my way" exceptions.

By Anonymous on 2013 10 08, 1:33 pm CDT

Yankee, for a guy who's awfully concerned about the US going the way of such countries as Greece, you're remarkably in favor of engaging in Greece like tactics (i.e. not paying the debts).

By OKBankLaw on 2013 10 08, 1:59 pm CDT

To be fair to Yankee, I don't think he's taken a position on that subject. Maybe I just missed it, though.

I think this started out as a discussion of the relative weight of the arguments about the Constitutional scope of the Executive's power as relates to paying the country's debts. And that's a discussion I find fascinating and worth having.

You can believe -- as I do -- that paying one's debts is wise and yet agree with Yankee that it is unlikely that the Constitution gives the Executive that kind of power.

(Though -- again being fair to all parties -- most of the usual crowd here tends to be more willing than Yankee to entertain counterarguments and engage in critical analysis of them than to choose an outcome based on political preference and pretend that conclusion is the only reasonable one.)

By Anonymous on 2013 10 08, 2:12 pm CDT

@52 What you assert is simply not true at all.

I am in favor of the United States making interest and principal payments on all of its lawfully issued public debt (i.e., existing debt issued consistent with the current debt ceiling). Indeed, tax revenues should be used to service such debt BEFORE paying any other government expenditure authorized by Congress.

In the event that tax revenues are inadequate to cover both debt service and other expenditures authorized by Congress, debt service should get a first priority. We should not and need not default on our debt obligations

By Yankee on 2013 10 08, 2:17 pm CDT

@53 ". . . most of the crowd here tends to be more willing than Yankee to entertain counterarguments and engage in critical analysis . . . "

Why do you say things like that? I am plenty able to engage in "critical analysis" and, indeed, make my livelihood doing exactly that.

What distinguishes me from "most of the crowd here" is that I see collectivism as inferior to its alternatives in providing the best quality of life to the largest number of people and as a danger to individual liberty that creates the conditions for tyranny.

I never drank the collectivist KoolAid. Never will.

By Yankee on 2013 10 08, 2:37 pm CDT

@55 - Your capacity for critical analysis is either gravely stunted, or else you save any demonstration of it for your professional life. I will point you to your comments in #33-40 as just one recent example of your inferior capacity for logical reasoning and critical analysis. You pass off conclusory statements as argument; when your reasoning is applied in a manner to reveal its inconsistency, you go off on tangents, or resume conclusory posts. If I wasn't an attorney and hadn't come across some of the people that "make a living" doing this, I would be puzzled how you could be one.

By NoleLaw on 2013 10 08, 2:48 pm CDT

Because you *don't* engage in analysis. You simply state that the argument that leads to whatever outcome is preferred by the hard-right GOP membership is true.

The prior post is exactly correct. You make conclusory statements as though they were fact when they are often open to debate. You prevaricate and dodge every time someone catches you in an uncomfortable logical position.

But the worst problem seems to be that you never appreciate that your positions on issues stand for larger principle that, when applied more broadly, simply don't function. You just want the GOP to get its way on specific issues while blinding yourself to what the logical result of your reasoning would be if applied in similar circumstances.

For instance, you want "Catholic companies" to have immunity to the Affordable Care Act *so badly* that you're willing to allow similarly-situated "Scientologist companies" to refuse to provide psychiatric care under the same principles. You basically made your own reductio ad absurdum.

In this case, you A) cannot point out a flaw in the passage of the ACA that makes it legally non-legitimate, and B) nevertheless seem to endorse this use of a procedural loophole to give Congress an effective veto over valid legislation. You may hate the ACA with a passion, but as I keep saying, there is no "But no, we *really* disagree with *this* one" exception. If this works, it establishes a procedure that allows a Congressional minority to block a law without having the votes to *actually* repeal it. Under that system, there would be *no law* that would be safe. We would lose our stability.

By Anonymous on 2013 10 08, 3:01 pm CDT

@56 Ouch! That sure is harsh. If I had any feelings, they'd be hurt.

I will say, however, your comment does illustrate part of the reason why the debt ceiling issue, which is the subject of this story above, has reached a crisis point, namely, the political left's Tourette's-like impulse to spew personal invective in the direction at those with whom they have policy disagreements.

When you call those on the other side of the aisle "terrorists", it makes it difficult to give them a call in an effort to find a middle ground.

By Yankee on 2013 10 08, 3:11 pm CDT

Of course, what enables this minority obstruction is the dismal mismanagement into which both parties have dropped the nation's finances. It is the fractured budget process and the seeming inability to stay under a debt limit that has set the stage for this manufactured crisis, and both parties are thoroughly complicit.

By B. McLeod on 2013 10 08, 3:16 pm CDT

#58 -- When the radical right that presently has the GOP in its thrall finally decides to uncouple its efforts to destroy or defund the Affordable Care Act from the tactics of shutting down the US government and flushing the USA's full faith and credit down the toilet by debt default, then meaningful negotiations will be possible.

Until then, not -- and rightly so. One does not pay blackmailers. It only encourages future blackmailing tactics.

By AndytheLawyer on 2013 10 08, 3:19 pm CDT

@50 "Obama, Reid and Pelosi are the authors the current crisis in Wahington." Really? The Speaker is declining to bring a "clean" CR to the House floor for a vote which most pundits, etc. feel would pass on a bipartisan basis due to an *internal* rule of the *Republican* caucus. That may be the Speaker's perogative, but blaming the Democrats is simply counterfactual.

The argument asserting that the ACA did not have "consent of the governed" is flawed. The ACA was a campaign issue. The governed had an opportunity to consent through the ballot box, and they did -- Obama was re-elected, and the Democrats retained control of the Senate. There have been plenty of examples of laws that were initially quite unpopular initially - Medicare, and the 1965 Voting Rights Act are 2 that come to mind. I would submit that a signifiant portion of the ACA's so-called unpopularity is due to an agreesive smear campain that ignores the facts and plays on sterotypes and emotions (e.g., the Koch brothers' adverts targeted at young people),

By Oldest Dog on the HIT porch on 2013 10 08, 3:22 pm CDT

@57 "We would lose our stability."

As I explained in earlier comments, if you want a government initiative to be 'stable' over time you need to seek and obtain broad consensus, sustainable over time.

If you take over over a significant segment of the economy and culture based upon a temporary majority, your expectation of stability is unreasonable and you have only yourself to blame.

By Yankee on 2013 10 08, 3:22 pm CDT


Your statements about default are factually incorrect. Household finance analogies are inherently flawed, but to use one anyway as a matter of illustration:

I have a credit card bill (the analogy to the public debt) which is due, and I have a utility payment due (the analogy to the current expenditures) and I have only enough money to pay one. If I pay the credit card, I'm not in default of my credit card, but I am in default of my agreement to pay the utility.

"Debt", unlike how you appear to define it, is all the money that is owed by the government, both under past borrowings and under present commitments to pay. Failure to pay any of the amounts owed by the US government is a default, regardless of whether that debt is long or short term, or large or small.

By OKBankLaw on 2013 10 08, 3:29 pm CDT

@61 - well put, except now it's not most pundits: CNN asked them individually and the votes are there to pass a clean CR but the Republican leadership will not allow a vote. Maybe the Republicans who would vote with Democrats will make a new coalition and elect a new Speaker, a bipartisan House of Representatives that marginalizes the Tea Party.

Yankee - it isn't a "temporary majority." The only temporary majority over the past 80 or so years has been when Republican's are put in a position of governing power, and even then they arguably stole it just as they are now abusing the Gerrymander to rule with 49.5% of the vote. American's traditionally have a low tolerance for radicals; we put up with them as long as they're entertaining but the radical right isn't funny anymore.

By Michael on 2013 10 08, 3:32 pm CDT

@62 - That is another example of how you prevaricate and change the subject when you cannot respond substantively to the point being raised.

By Anonymous on 2013 10 08, 3:34 pm CDT

@61 What is "counterfactual" is your assertion that Medicare was "unpopular initially." In point of fact, Medicare was enacted in 1966 with overwhelming support by both houses of Congress, including significant Republican support. The same cannot be said about the Affordable Care Act.

Indeed, before the debate that preceded the Affordable Care Act began, Obama was advised (and I guess implicitly warned) by those on the political left to look to the debate leading up to the passage of Medicare to get a "sustainable" program enacted. He failed to take that advice, and that is why we are where we are today.

See, "What the 1965 Medicare debate can teach us about health care", reform.

By Yankee on 2013 10 08, 3:39 pm CDT

Do you understand that, even if everything you just wrote was objectively, provably true, it would not change the fact that the ACA is duly enacted legislation and that, for 250 years, the only proper means by which legislation that has been deemed Constitutional can be revoked is be proper repeal?

You're complaining about the passage/wisdom of the ACA, but that is not critical analysis of the actual legal issues in play here.

What matters is that our system has *never* permitted a Congressional minority to exert a veto over duly-enacted legislation, no matter how much it dislikes it.

By Anonymous on 2013 10 08, 3:44 pm CDT

1. A plain language reading of the Constitution is that ONLY Congress can authorize sending - and that appropriations originate in the House - and that all debts incurred by CONGRESS must be paid. The Constitution does NOT authorize the President to spend or borrow money beyond what Congress has authorized. Period.

Specifically, the 14th Amendment, section 4 reads "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."

The debt limit is a strict constitutional limit on what the federal government can borrow. AUTHORIZED BY LAW is the key phrase.

No. The President has no executive power to borrow (or spend) beyond what the Congress has allowed. The President cannot ignore the debt limit. No weasel words or tortured logic about "emergencies" or "irreconcilable choices" changes the fact that the 14th Amendment specifically, in plain language, limits borrowing to that which is AUTHORIZED BY LAW. And Congress sets those limits.

If he does ignore the debt limit, the Constitution and it's checks and balances is over. We will be in a dictatorship.

By Pacific on 2013 10 08, 3:46 pm CDT

2. Some of the Democrats posting here will find that exciting. They can throw away the pesky 22nd Amendment (they'd love to see Obama "President-for-Life"). Better yet, why bother with presidential elections? 5th Amendment? "We don't got no 5th Amendment. We don't need no stinkin' 5th Amendment" Freedom of the press? Sen Diane Feinstein will determine WHO is a "reporter" and only Official Licensed Reporters will be allowed to report "news", and only in Official Licensed News Media Outlets. 2nd Amendment? WHAT Second Amendment. The enumerations of Amendments will go "3rd, 11th. No more needed."

Article 1 can be rewritten as "Congress shall consist of two houses, the House of Representatives and the Senate, who will do whatever the President tells them to do."

I expect Obama to ignore the Constitution (as he has been known to do) and simply borrow whatever he wants and spends what he borrows as he pleases. If so, America is over.

PS to those who are annoyed that a "minority" can flummox the desires of the "majority" (aka the Democratic Party), America is a Republic, not a Democracy. Minorities get a say in setting policy. So get over it.

By Pacific on 2013 10 08, 3:47 pm CDT

Getting "a say" is very different than dictating.

We are *already* in a dictatorship, with the far-right dictating to the majority.

Your side *lost* the election: get over it.

By Michael on 2013 10 08, 3:53 pm CDT


Not to put too fine a point on it, but in 1965 when PL 89-97 was enacted, all 17 Democrats on the House Ways and Means Committee voted yes, and all 8 Republicans voted no. The actual vote on the House floor was 313-115 (65 out of 138 Republicans voted yes, 248 of 290 Democrats voted yes). In the Senate, the vote was 68-21 (13 of 27 Republicans voted yes, 55 of 62 Democrats voted yes).

When it got our of conference, the percentages did get slightly more even, you're right, 307 to 116 in the house (70 of 138 Republicans voted yes, 237 of 285 Democrats voted yes) and 70 to 24 in the Senate (13 of 30 Republicans voted yes, 57 of 64 Democrats voted yes).

At the time most Republicans were running on how Medicare would destroy America and how the law needed to be repealed. Such prominent and influential Republicans as Ronald Reagan and Bob Dole (one of the Congressmen who voted no) said that Medicare threatened the very existence of the Capitalist system.

Of course now, no Congressperson would dream of proposing that Medicare be done away with.

By OKBankLaw on 2013 10 08, 3:56 pm CDT

@69 Yankonian reasoning at its finest. Supporting the President, unquestionably elected by a majority of the voter, in what should be uncontroversial no-brainers such as keeping government open and paying off our national debts, is a support of dictatorship. At the same time, it is fine that a Congressional minority thwarts the will of a majority (and not to protect its constitutional rights, as decided by SCOTUS), because we are "not a democracy" after all.

By NoleLaw on 2013 10 08, 3:57 pm CDT

@63 No, your statements about default are factually incorrect.

What you've done is given the beneficiaries of an unfunded government wealth transfer program the very same status as the holders of a debt obligations of the United States of America. Surely, if you want to retain the ability to borrow money in the future, the latter should have a preference over the former when it comes to tax revenues.

Working with your household example, the credit card company has a preference over my income when compared to my lovely daughters to whom I have promised nice wedding receptions when they grow order.

The credit card company will get paid first even if that means having the wedding reception in the Church basement rather than at the country club,

By Yankee on 2013 10 08, 3:59 pm CDT


So what happens when Congress instructs the Government to do two different things? With the debt ceiling debate you have Congress instructing the Government to spend money on things it's already told it to do, but then further instructing the Government not to borrow the money required to pay for the things it's instructed the Government to pay for.

By OKBankLaw on 2013 10 08, 3:59 pm CDT


So pesky little programs like the National Defense are analogous to your daughter's wedding receptions?

By OKBankLaw on 2013 10 08, 4:00 pm CDT

@72 - I am regretting trying here. I always do.

I don't want *either* party being able to pull this type of shenanigan, and I don't understand how short-sighted they can be that the Democrats could turn around do this to them someday.

By Anonymous on 2013 10 08, 4:04 pm CDT

When you give a bunch of crazy people a stick, don't act all surprised when they come after you with it.

By B. McLeod on 2013 10 08, 4:06 pm CDT

@75 You ask: "So pesky little programs like the National Defense are analogous to your daughter’s wedding receptions?"

Once debt service obligations are met, what remains will be distributed among other programs in some fashion, whether that involves paying the military on one hand, or paying for Obama Phones on the other hand.

By Yankee on 2013 10 08, 4:15 pm CDT

@ You conclude: ". . . we are 'not a democracy' after all."

That's correct: We are a Republic.

By Yankee on 2013 10 08, 4:21 pm CDT

@76 - I think you were on to something when you recommended ignoring the Yanquistas on this site, and for a while most folks kept to that suggestion. For a while there was a good dose of healthy debate here. I guess sometimes you, like all of us, are just irresistibly drawn to responding to some of the insane claims on this site. B.McLeod's right, trying to engage some of these folks is like giving a crazy person a stick and being upset when they take a swing. Pointing out glaring logical flaws is simply pointless when dealing with someone not interested in logic.

Any chance at reinstating that former pledge?

By NoleLaw on 2013 10 08, 4:21 pm CDT

@80 "Any chance at reinstating that pledge?"

I recall that you had that very same pledge with a commenter of ancient memory who went by the name "Another Andy." (Your use of the term "reinstating" is curious suggesting that you believe Mr. Anonymous is well . . . you know.)

By the way, I fully understand how those on the Political Left are unable to tolerate voices that don't sound like their own. I don't take it personally.

Indeed, the inability of Obama, Reid and Pelosi to communicate with those on the other side of the aisle - - both in 2010 and today- - has brought us to the present crisis point.

By Yankee on 2013 10 08, 4:39 pm CDT

It is pretty funny that Boehner will not bring a clean bill to a vote saying, "It does not have enough votes to pass."

Since when did that stop them from bringing up for a vote the repeal of the Affordable Health Care Act?

Some 42 times or so they brought it up for a vote when it clearly "did not have enough votes to pass."

That tells you all you need to know about Republican "leadership."

By Paul the Magyar on 2013 10 08, 4:43 pm CDT

I think ignoring it is a fine idea, but every now and then my rampant idealism just gets the best of me.

Yankee, don't deceive yourself, it's not that we don't like what you have to say. We may disagree with your opinions, but that's all we can do there -- disagree. What we *want* is some actual engagement in the debate.

But you are literally just throwing ultra-right talking points at legal analysis as though it should mean something. It's not productive. It's not interesting. It's not even infuriating anymore.

We've given you plenty of places here to actually engage in analysis and you just... keep attacking points that aren't legally relevant.

We have argued that that this is not an appropriate way to nullify a law when you lack the ability to actually repeal. It defies 250 years of our Constitutional processes by giving a Legislative minority a practical veto.

Do you have any other response than that you don't like it and think it passed too quickly? Anything that would actually assail the legislation on legal grounds? Any argument that it's alright introduce this new procedure into our political system? Is it alright for Democrats to do this when the tables turn, or will your song change depending on who's in charge?

... Or is this type of procedure only alright because *you* happen to dislike the law enough to justify it?

By Anonymous on 2013 10 08, 5:17 pm CDT

@81 -
1. The former pledge was with a poster going by "Anonymous."
2. I never hid what I perceived as similarities between the posting styles of certain commenters.* I wish I never did make that perceived connection clear, as your parroting of it has been incessant and bordering on the paranoiac since then.

*See my comments at 31 and 59, and your ensuing "epiphany" at 60 at the following link

By NoleLaw on 2013 10 08, 5:28 pm CDT

That link was too long, try this <a href="">one</a>

By NoleLaw on 2013 10 08, 5:30 pm CDT

@81 - "Indeed, the inability of Obama, Reid and Pelosi to communicate with those on the other side of the aisle - - both in 2010 and today- - has brought us to the present crisis point. "

Rubbish - what's brought us to the current point is the Speaker's inability to control his own caucus. The Republicans are hardly victims of the Democrats in this one, but they are victims to the Republican minority's willingness to put idealogy above their own party's national interest .

It would be interesting to see what happens should Obama use one or more of the Constituional interpretations in the orginal article to raise the debt ceiling. The rabid right would be howling for impeachment, but query whether that would actually rise to the level of an impeachable offense? Presidents have done many things that are outside the Constitution in times of emergency (e.g., the suspensioon of habeus corpus by both Lincoln and Wilson).

Just a thought to try to steer the conversation back to something remotely resembling a discussion of the applicable law....

By Oldest Dog on the HIT porch on 2013 10 08, 5:30 pm CDT


You don't practice in the area of Bankruptcy law do you?

By OKBankLaw on 2013 10 08, 5:37 pm CDT

@86 Yes, I am sure that Obama would love to declare an "emergency" and "suspend habeas corpus" as you suggest.

No, there is nothing that Obama could possibly do that the Democrats in the United States Senate would view as an "impeachable offense."

What would prevent Obama from issuing new debt in violation of the debt ceiling would be the risk premium our creditors would demand to purchase such a debt instrument. Say what you will about the Chinese, but they sure ain't fools.

By Yankee on 2013 10 08, 7:04 pm CDT

@83 ". . . my rampant idealism just gets the best of me."

Yep, I read your posts and "rampant idealism" is what immediately comes to mind.

What a tortured soul you must be.

By Yankee on 2013 10 08, 7:09 pm CDT

I'm almost scared to ask but .. why do you think Obama wants to suspend habeas corpus? There's a whole group of malcontents who think Democrats are violating the law by winning elections then governing. There's this over-the-top sense of entitlement they have that has nothing to do with law or public policy; it's really like watching spoiled children.

By Michael on 2013 10 08, 7:15 pm CDT

@90 You ask: "I’m almost scared to ask but .. why do you think Obama wants to suspend habeas corpus?"

I was just agreeing with the commenter @86, who strangely mentioned the suspension of habeas corpus.

By Yankee on 2013 10 08, 7:35 pm CDT

@91 - "I was just agreeing with the commenter @86, who strangely mentioned the suspension of habeas corpus."

Strangely? Perhaps reading the post would help. The underlying issue and all of the Constitutional quoting that has been previously done goes to whether Presideint Obama has the Constitutional authority to raise the debt limit. You will recall from the original article that such a procedure was examined in the article. Thus, there is nothing "strange" about the observation that "[p]residents have done many things that are outside the Constitution in times of emergency (e.g., the suspensioon of habeus corpus by both Lincoln and Wilson)." The mention of habeus corpus was intended, and clearly indicated as one example of Presidents who have taken actions that were arguably outside the scope of their Constitutional powers. The use of "e.g." in no way implies that I was advocating that the right of habeus corpus be suspended, nor was I opining on whether Mr. Obama has any such inclination to do so.

Impeachment is available for "high crimes and misdemeanors". Clinton's "impeachable" offense was, if I recall correctly, perjury for lying under oath, which is a crime. I've no desire to rehash that one, but how does taking an action arguably outside the constituionally granted powers translate into a "high crime and misdemeanor"? Is there precedent for impeachment on that basis, leaving aside the political question of whether the Senate woudl convict.. There's the oft-repeated wisdom that a prosecutor can indict a ham sandwich, but surely the standard for Articles of Impeachment is higher than that.

By Oldest Dog on The HIT Porch on 2013 10 08, 8:37 pm CDT

In an opinion piece today, Bill Moyer has referred to the shutdown as "Secession by another means."

Very inflammatory language.

By Yankee on 2013 10 08, 8:39 pm CDT

A default on payments is a default on payments. Whether it's on interest and principal payments now due, or on payments for services rendered but not yet paid for. I realize this may be hard to grasp but very rarely does the US government pay for something in advance which means that failure to pay the bills constitutes a default on outstanding obligations.

To put it another way, if you don't pay your electric bill consistently that will eventually reflect in your credit rating, even if it isn't reflected as quickly as if you fail to pay your credit card.

By OKBankLaw on 2013 10 08, 9:27 pm CDT

@89 - Insulting me is a poor excuse for not responding to our genuine invitation to you to engage in actual legal analysis in post #83. It does not cover up your failure to engage in critical thinking. And it does not cover up your habit of changing the subject when you cannot respond substantively to a person's arguments.

Here's a quick run-down of the arguments I see that you've dodged rather than respond to.

We have argued that that this procedural maneuver is not a legitimate or appropriate way to nullify a law when the minority perpetrating it lacks the legislative ability to actually repeal the law. It defies 250 years of our Constitutional processes by giving a Legislative minority what is essentially a veto. This could establish a maneuver that would change how our laws function from this point onward.

Your only response so far has been A) to attack the wisdom of the law, B) to attack the people who supported it, or C) to attack the way in which the law was considered. None of these address our argument in any way.

1. You continually characterize (or mis-characterize, depending on one's opinion) the passage of the bill as rushed. You must know that this does not affect the law's validity. Do you have any argument that a procedural failure in the passage of the legislation makes the law invalid?

2. You question the wisdom of passing the law with a "temporary majority." Are you arguing the legislation is only valid if the majority that lawfully passes it has been in control for a requisite period of time? If so, do they have to somehow predict how long they will remain in control? Again, we're not interested in your thoughts on the *wisdom* of it -- we're asking whether it somehow makes the legislation invalid.

3. Do you have any argument that introducing this new Legislative veto procedure into our political system is justified -- knowing that a Democratic minority in the future could employ this tactic to nullify ultra-conservative legislation?

By Anonymous on 2013 10 08, 9:41 pm CDT

@94 You're correct: In addition to debt service, back wages must be paid, along with vendors who have provided goods or services to the government. For what it is worth, I never disputed that.

However, employees have no right to unearned future wages, nor do the expected beneficiaries of various government wealth transfer schemes have any claim on tax revenues when there is not enough revenue to go around. When such employees are laid off, or when somebody doesn't get their new Obama Phone, the government is not in default.

By Yankee on 2013 10 08, 11:10 pm CDT

@95 First off, I plead NOT GUILTY to "insulting" you. It is just that I found it quite amusing when you confessed to suffering from "rampant idealism." You have to admit that even in the Narcissistic Age in which we live, that self-characterization was a bit over-the-top and self-congratulatory.

But now, let me get to your questions.

1. I have made no claim, above, that there was a "procedural flaw" in the enactment of the Act in the 111th Congress. Put another way, there may or may not have been a procedural flaw. I just don't know, and accordingly have no spoken to the topic.

2. No one disputes that the Act would stay on the books and that defunding would not change the existing law. As to the "wisdom" of a "temporary majority" enacting a law opposed by so many, I would think that our crisis would demonstrate that this was not a wise course of action. Surely you can see that?

3. This is not a "new Legislative veto procedure." Indeed, as I concede above, the Act would remain on the books until such time as it was repealed.

However, the Federal Anti-Deficiency Act prohibits federal employees from making or authorizing any expenditure or obligation in excess of the amount available in an appropriation or fund unless authorized by law or involving the government in any obligation to pay money before funds have been appropriated for that purpose unless otherwise allowed by law. This law prohibits one Congress (e.g., 111th Congress) from tying the hands of a future Congress (e.g., 113th Congress).

Just as a fully paid for automobile won't run if it doesn't have gas, a law on the book that requires government employees to administer, won't operate unless those employees are paid.

Finally, to coin a phrase, the Federal Anti-Deficiency Act is the "law of the land."

By Yankee on 2013 10 08, 11:51 pm CDT

I would love to hear you argue how "we will fund every part of the government but the ones established by this law, because we can exploit a procedural rule to stop a vote to fund the entire government but we lack the votes to repeal this law" is not equivalent to a legislative minority veto.

By Anonymous on 2013 10 09, 12:23 am CDT


It's only worth something if you think there's enough money to do what you say. I'm curious, how much of $600+ Billion is "wasted spending"? Please, list all the programs and the dollar amounts.

By OKBankLaw on 2013 10 09, 3:20 am CDT

I would say all of QE1 and all of QE2, since the point of each was to borrow and spend $600 Billion to help the Fed increase the "money supply" and generate inflation. I suppose those are water under the bridge now, but we are no doubt still covering whatever that money was wasted on, on a current basis. Programs tend not to fall out of the budget.

On a side note, the basic theory of public borrowing is that it provides a mechanism to spread cost of capital asset over its useful life. It should be confined to capital assets. When you start taking on long term debt to fund operating budgets, it is like taking out a five year loan to gas up your car. You are just commiting future earnings to the cost of an asset that will be gone. Alarm bells should be sounding. But this is what the federal government has done for decades. It is irresponsible "finance," and it is unsustainable (as we are in the process of rediscovering).

By B. McLeod on 2013 10 09, 6:27 am CDT

QE1, 2, and all the rest but TARP and a few other programs were off-balance sheet spending by the Fed, not the UST. The Fed can't borrow money but they can, and do, print then spend it which has the effect of making the rest of our money worth less (that's how it's supposed to work in theory at least).

Not that Congress doesn't waste lots of money -- think especially Ag subsidies to millionaires, aid to banks, and questionable weapons projects -- but the Fed programs aren't technically part of it.

By Michael on 2013 10 09, 12:12 pm CDT

The Fed didn't borrow money to do QE1 and QE2. Though I agree with you about borrowing money to fund operating budgets, as you say that's water under the bridge. If you eliminated all non defense discretionary spending (based on the 2012 budget), you could almost come up with enough money to cover the budget deficit, though you would still have to cut into military spending in order to fill the entire gap. That's ok though, I'm sure the government doesn't need air traffic controllers, food safety inspectors, border patrol agents, etc. I'm also sure none of us practice in Federal Court, so we wouldn't need to worry about that either.

By OKBankLaw on 2013 10 09, 12:15 pm CDT

I didn't say "the Fed" did. It is still the government that issues treasuries.

By B. McLeod on 2013 10 09, 12:27 pm CDT

Thinking about it I don't see why the Fed couldn't guarantee all US debt, taking over debt service immediately should the US ever default? Since the Fed owns so much of it they could legitimately argue the guarantees are in their own best fiduciary interest, since the value of so much other debt would be eroded from a widespread default. That would eliminate the threat, by either political party, forever.

By Michael on 2013 10 09, 12:37 pm CDT

@99 Your placement of quotation marks around the words "wasted spending" is curious since that is not a term I traditionally have used, and certainly did use that in my comment @96.

When I discuss spending by the National government, I usually speak in terms of spending for functions either properly within or properly without the scope of the National government, although very recently I tend frame the question in more dire terms of what we can or cannot afford.

By Yankee on 2013 10 09, 12:49 pm CDT


The quote was not a quote of yours. But that's a clever dodge.

By OKBankLaw on 2013 10 09, 1:23 pm CDT

It's not a dodge at all since the issue has never been whether government spending is 'waste' or 'fat' - - a proffered standard that is at the same time easy to meet AND does not speak to the critical issue of whether an activity is properly within the scope of the National government.

And that, of course, was before the present economic crisis that has impacted government revenue and likely will impact our ability to borrow at reasonable interest rate in the not too distant future.

By Yankee on 2013 10 09, 1:50 pm CDT


I'll phrase the question differently then. Please list all the government programs you believe are out of the purview of the federal government and their dollar cost. To make things easier on you, I'll say you only have to come up with the approximately $600 billion worth that makes up the budget deficit.

By OKBankLaw on 2013 10 09, 2:44 pm CDT

As interesting as this is, isn't it all just an obvious distraction from the fact that there are serious legal questions that the other side just can't respond to satisfactorily?

We still haven't completely addressed why we should create a minority legislative veto power just because of that minority's opinion on a single law that has been duly enacted by a Legislature, signed by an Executive, and found constitutional by the Judiciary?

Why are we discarding 250 years of tradition and changing how our system works because of a far-right conservative obsession with a healthcare law that *came from conservative thinkers to begin with*?

By Anonymous on 2013 10 09, 3:23 pm CDT

@109 You've received responses to all of your questions. The fact that you have not judged the responses "satisfactory" from a policy perspective is something beyond my control.

Your characterization of these issues as "serious legal questions" does not, of course, make them "legal questions" let alone "serious". The authority of the Congress to appropriate funds, with the specific authority of the House to originate "Bills for raising Revenue", has been embedded in the architecture of the Constitution since its radification. The Anti-deficiency Act, which I described above, the earliest version of which was enacted shortly after the conclusion of the War Between the States, is primarily intended to implement Article I, Sec.9 of the Constitution which gives Congress the power of the purse. It should be noted that the original version of this Act was in responses to abuses by the Executive Branch of government

Finally, the discard of "tradition" that you decry did not occur over the past several weeks, but rather during the heady days of the 111th Congress when the Obama, Reid and Pelosi decided to take over a significant portion of the U.S. Economy and to change the relationship between citizens and their National government without the level of consensus required for such a monumental change in our society and social fabric. That foolish threesome have put us in our current predicament.

By Yankee on 2013 10 09, 4:03 pm CDT

You have had ample time to explain that the passage of the law deviated in any way that is *legally* significant (as opposed to something you just object to). You have not done so.

Is it your position that, not withstanding the fact that you cannot identify a legal flaw in the passage of the law, we should allow a backdoor, Legislative veto? Why should we give a minority political group that 1) failed to prevent the law from being passed and 2) cannot legitimately repeal the law, a way to block a legitimate use of Legislative power?

By Anonymous on 2013 10 09, 4:10 pm CDT

Yankee, Congress already appropriated funds for these things which the debt is going to pay for. They passed CRs, they passed laws, they even, once upon a time, passed budgets. There are now two conflicting pieces of legislation out there, an authorization to expend funds, but no accompanying authorization to borrow funds. The Constitutional question to me seems kind of simple, the last bill in time implicitly overturns the previous bill when they conflict. So, which one was last?

By OKBankLaw on 2013 10 09, 4:18 pm CDT

@111 You keep using this term: "legislative veto." Not only is this term made up, but also, this term fails to adequately the dynamics of the governmental process we're both witnessing, namely, appropriations, which involves an affirmative act of Congress for a particular budget year.

By Yankee on 2013 10 09, 4:32 pm CDT

Some of that may be true. And I wouldn't be calling it a veto if it weren't being used to attempt to nullify a single, selectively-targeted law.

But what we have is a legislative minority using a procedural mechanism *not* to legitimately adjust the budget as a whole, but in a line-item fashion in an attempt to block the funding and therefore effectively nullify one particular law that it lacks the voting power to repeal.

That is, in effect, a veto power. "Legislative Veto" is a manufactured term precisely because the legislature is not supposed to be able to HAVE an effective veto.

Again, you're side-stepping the issue. You *know* that this isn't an appropriate procedure and a legislative minority is not supposed to be able to nullify a law that it lacks the ability to repeal. The rest is sophistry and we all know that.

Do you really dislike the Affordable Care Act enough that you'd be willing to see this become a legitimate and commonplace legislative practice going forward?

By Anonymous on 2013 10 09, 4:44 pm CDT

@114 What the Republicans are doing here is an entirely "legitimate" legislative practice; indeed, a practice built into the architecture of Article I, Section 9 of the Constitution and certain implementing legislation, as explained above.

I don't anticipate that this practice will become "commonplace" in the future, although given the tragically broken budget/appropriations process, I can't make any guarantees.

It should be noted that this line item defunding has occurred in the past, for instance, through the fairly well-known Hyde Amendment.

By Yankee on 2013 10 09, 5:45 pm CDT

I think you know that's a poor argument.

Nowhere in the Constitution is a Legislative minority given this power. It only exists because of a GOP procedural rule. (And maybe the Dems have the same rule -- if so, it shouldn't be used in this way either.)

The Hyde Amendment is not parallel to this at all. It was not a Congressional minority attempting to nullify an entire federal law that it lacked the power to repeal.

And the end of the game, after given multiple opportunities, this is all you have: You don't like this law because you've been told not to, and you're willing to see our entire system changed in order to get your way. And I pray it doesn't happen, because that just isn't how our legislative system was designed to work.

By Anonymous on 2013 10 09, 5:49 pm CDT

@114, 115, 116
The government has defunded programs before. E.g., there is a provision wherein felons can go through various steps to regain their rights to own a gun legally. However, Clinton defunded the program. While the statute exists, he defunded the program. Thus, in essence the program is void.

By Pacific on 2013 10 09, 8:12 pm CDT

@117 - A) That's a tu quoque argument and is not relevant to the actual issue being discussed.

B) Even if we did stop to discuss the unrelated issue, I would say that it seems wrong for the Executive to do that without Legislative consent, but that two wrongs do not make a right.

By Anonymous on 2013 10 09, 8:20 pm CDT

@114: Agree with or disagree with the actions of the minority, but you must agree from a *policy* perspective, they have achieved their goals. First, if they are able to achieve the ability to exercise a pseudo-line item veto then they have, in effect, drastically increased their power (albeit within the framework of a severely handicapped (relative to historic norms) government).

Even should they eventually fail in their attempts to exercise such a power, they will have:

1) Called into question the ability of the United States to cover its debt (thereby increasing the cost, or eliminating the ability, to borrow).

2) Without borrowing the United States will, ipso facto, have to reduce spending (since there exists no surplus of revenue to cover current accounts)

3) Without spending the United States government will, of necessity, shrink...

It's drastic, but they will achieve their goal of reducing the size and scope of government. They usually don't want to have their own ox gored (e.g. military spending), but it appears that they are willing, in this instance, to lay even this sacred cow on the altar. It is obvious to what are usually considered even the most strident of "corporate exec" conservative/republicans that default would have disastrous consequences, so I can only assume they feel winning the battle is worth the price to be paid. I think they are convinced that they are fighting for the "soul" of the United States.

Whether what comes out the other end of the blast is worth saving is another question.

By AndyRTR on 2013 10 09, 8:31 pm CDT

@119: Oh, without a doubt. It is certainly a rational way to achieve the goal. The question isn't whether or not it's a rational plan. The only question is whether one is willing to sacrifice the integrity of the entire institution because one believes that the goal is so important that the ends justify any means. That's what happens when gerrymandering and political media sources put extremists in an echo chamber. Indeed, if one stands to profit even from making a doomed stand that hurts others, and is willing to do so for personal gain, it is also a perfectly rational plan.

That's exactly why I hope the Democrats don't budge an inch.

I don't want to resort to the "terrorist," "blackmailer," or "tantrum-throwing child" analogies, because insulting the other side just doesn't do anyone any good. The fact is that there is a small group that is threatening to cause tremendous damage if it does not get its way. You can analogize that to whatever you please. But if we look at the possible analogies without connotative mud-slinging and *solely* analyze the similarity of motivation and incentivization, we can project from certain apt comparisons. And no matter which way we analyze it, the endgame is this: giving in to such demands only teaches the malefactor to resort to the same acts time and again.

This is bigger than the ACA. If the Democrats give in, it will give the GOP no reason not to repeat this ploy any time it doesn't get its way. It will change the stability and finality of our laws from here on out, providing precedent for a legislative minority to block laws that it lacks the power to repeal. I don't care which party it is, or what the issue is, that isn't how our system has worked for almost 250 years, and there seems little reason to change the balance of power between the branches of our tripartite government now.

If the GOP can convince enough voters that the Affordable Care Act is a bad thing, let them repeal it.

By Anonymous on 2013 10 09, 9:04 pm CDT


Unfortunately, as I indicated in my earlier response, they likely win whether or not the majority "gives in" because their overarching goal isn't scuttling the ACA (although I'm sure the would tell you it is). The goal is to {forgive the sexist analogy} castrate the government. They desire a weak government. This is not your historical, country-club, blue-blood conservative, who wants the status quo because he's getting fat off of it. This is a far more violent (not necessarily in the physical sense), reactionary position of wanting to gut the government at every turn.

Remember, as Yankee has repeatedly said, the ACA represented a move wherein, "Obama, Reid and Pelosi decided to take over a significant portion of the U.S. Economy and to change the relationship between citizens and their National government without the level of consensus required for such a monumental change in our society and social fabric."

Ergo, those who agree with the policies of those who have resisted funding that law see themselves as responding in kind to a fundamental shift in how monumental change is made. The correctness (or rationality) of that belief? I suppose that will be left to the future to determine.

By AndyRTR on 2013 10 09, 10:12 pm CDT

@116 You assert: "I think you know that’s a poor argument."

But what are we arguing about, really?

If the Republicans were doing something unconstitutional, Obama would have been in Court by now.

But he isn't.

I explained why this strategy was lawful, above, primarily @97 and @110, and you have not answered that analysis. Not surprising, since you really don't have anything to work with.

Instead, you have used the decidedly fuzzy, non-legal word "illegitimate" in your comments. I interpret that word to mean something that offends your personal sensibilities (no doubt because Congress is asserting some long unused authority), but that is otherwise Constitutionally sound.

By Yankee on 2013 10 09, 11:24 pm CDT

@121 You assert: "They desire a weak government."

You assertion lacks nuance.

What we desire is a National government meaningfully more limited in scope, but strong in the scope that remains, such as national defense.

It also involves returning to a more traditional type of Federalism, where states are bolder than they are today.

By Yankee on 2013 10 09, 11:33 pm CDT

Well, you got one part right -- you didn't leave me much to respond to analytically that had any bearing on the subject.

I don't think what they're doing is affirmatively unconstitutional -- but it certainly wasn't predicted or intended, and it certainly runs counter to the system established by the Constitution.

You are, however, dead wrong in drawing a conclusion about why it isn't in the courts. We all know that it would be non-justiciable under the political question doctrine.

By Anonymous on 2013 10 10, 12:18 am CDT

@120 - I mentioned this before, but I hope there can be a positive that comes out of this insanity, namely national galvanization of support for electoral reform. While fixing redistricting for state houses would require a state by state solution, it seems like the federal government could ban gerrymandering of congressional seats under Article I Section 4. I am not going to be holding my breath, but finally people are realizing the magnitude of problem.

By NoleLaw on 2013 10 10, 12:25 am CDT

Maybe it will even get people to seriously focus on how desperate this insane debt situation is, so that we can finally stop spending trillions we don't have.

By B. McLeod on 2013 10 10, 12:27 am CDT

I agree completely. You would think stopping the insane borrowing is something upon which we can all agree?

By Yankee on 2013 10 10, 1:03 am CDT

But Yankee, I think the point is that they are willing to sacrifice even national defense spending (normally the third rail for republicans), but here even that can be sacrificed to accomplish their goal.

By AndyRTR on 2013 10 10, 1:37 am CDT

And the counter point is, so is Obama. In an administration reminiscent of Jimmy Carter, Obama's grand agenda has ground down to an almost nothingness, and he is vested in tand obsessed with he ACA as his flagship (some would say only) accomplishment. As he staggers on to a lame duck conclusion, he is forgetting even that point he once seemed to grasp (and which W never did grasp), that the Presidency is about the public interest, and not all about him.

Like Jimmy Carter, who was a candidate of great personal integrity and at the outset, seemed promising, Obama has proved dismal, dismal, dismal. Just one more in the continuing decline since Kennedy.

By B. McLeod on 2013 10 10, 6:43 am CDT

@120 I vehemently disagree with you! This is not a government of the people, this is a class system government -- top down. This is antithetical to our constitution which is that it should be governed by "We the People." We are capable of governing ourselves and should return to more state's rights -- not a federal Leviathan.

By Pacific on 2013 10 10, 10:05 am CDT

@126 - You don't deal with an insane debt situation with insane policymakers. The solution to the debt issue is simple in theory - spending cuts and long term entitlement reform, coupled with revenue increases. A bipartisan committee of experts (in fact, countless bipartisan groups and experts) made that suggestion, and only those who are blinded by partisan ideology or beholden to an extreme electorate cannot recognize that.

The way you get to policymakers who can implement good policy is by reforming electoral rules, primarily among those laws governing redistricting. Congress could do it in one fell swoop, at least at the federal level.

Interesting Gallup results came out today. The GOP has registered the highest disapproval rate of any party since records have been kept, and the number one concern of voters is government dysfunction, over the economy and jobs.

By NoleLaw on 2013 10 10, 12:19 pm CDT

You deal with it any way you can, and if you have insane policymakers, you deal with it insane policymakers.

By B. McLeod on 2013 10 10, 12:30 pm CDT

I mean, let's be fair here. Your opinion on someone doesn't make that person *insane*.

I don't think any of our politicians are *insane*, at least no more than the rest of us. I just think they choose to sacrifice the good of our country for personal power and to aggrandize the power of their political group, despite the effect on the country at large.

As I've said before, Obama is a mixed bag for me. He's done some things I applaud. But he's also continued sponsoring a lot of unconstitutional activity that I expected him to curtail. In those avenues, he's no better than the last Constitution-shredder who occupied his office.

The problem, as I see it, isn't with Obama. The problem is with a two-party system that was not foreseen by our Founders that left us in a position where we only have two choices. And given the choice between foolish and evil, I will take foolish every time.

By Anonymous on 2013 10 10, 2:47 pm CDT

@133 - I don't think that a two-party system is flawed inherently. In theory, competitive general elections should nudge those parties toward the center, and when one party drifts too far in one direction, it will be punished and removed from power.

Not to sound like a broken record, but I think the mechanism of competitive elections, an absolutely crucial check on politicians and extremism, has been corrupted. It is mind boggling to me why we allow politicians to determine their constituencies. And I guess I agree with your point that the politicians in Washington are not necessarily insane. They are rational actors. It rational for them to want safe districts, and it is rational for them to espouse extreme ideological positions when the only election they are worried about is a primary (usually closed) where the extreme members of the parties are more likely to vote.

In my own state, the majority (yes, the majority!!!) of legislative seats are not filled by a general election contested by both parties. The lack of electoral competition is unsustainable. As long as it continues, incompetent ideologues will continue attaining office, and they will continue to pursue ideologically driven and incompetent policies. The problem is that simple, and it is that grave.

By NoleLaw on 2013 10 10, 3:07 pm CDT

And to respond a bit more to your last point on the two party system. I would think the founders, coming from the British two-party system, probably had a decent idea that single member districts, with a winner take all election for President, would likely result in a two party system, even though they did not have the benefit of Duverger's formulation of why that is usually the case.

By NoleLaw on 2013 10 10, 3:17 pm CDT

I doubt it. Most scholars I'm familiar with conclude that the formation of political parties wasn't something the Founders were that prepared for, much less that we would coalesce around only two. But I'm sure there are other learned viewpoints.

I don't think our parties are really comparable to a parliamentary system. I'm not an expert in the history of Britain's political parties, of course, but my general understanding is that a parliamentary system requires more coalition-building that necessarily pulls the governing party towards the center. Ours is a winner-take-all system. Apparently, we like it when we win -- but when the other guy wins we pretend that he really didn't.

By Anonymous on 2013 10 10, 3:21 pm CDT

I'm with Anonymous on this. After all George Washington himself warned of the creation of political parties and the inherent conflicts that might come up under such a system.

By OKBankLaw on 2013 10 10, 8:17 pm CDT

@136 - You are conflating government structure with electoral structure. When you have single member districts with top vote-getters winning, it makes little difference whether you have a parliamentary system of government or not, you are likely to end up with effectively two parties. This is especially true if you do not have strong regional interests. Plaid Cymru or the SNP may continuously win seats in the UK because of local support, like the Bloc Quebecois in Canada, in spite of single member districts, but none of those parties could compete if their support was evenly spread across the country. Think of all the Westminster style parliamentary systems (Australia would be another); they all tend to be dominated by two parties.

If you have multi-member districts then you are almost certain to see more parties elected to a parliament, as you may gain seats even if you poll, say, 10% nationally. In those countries, a coalition government is almost inevitable. However, studies that have looked at the matter have not generally found that governments in majoritarian systems (i.e. single member district systems) are necessarily worse at representing the general population than those in plurality systems (those with multimember or even national elections for parliament, where many parties can get in, and coalitions are necessary). If both systems are fair, the governments will tend towards the median voter, either through coalition building post election (plurality systems) or selection of candidates during general elections (majoritarian systems).

Some countries have an interesting combination - single or small districts for certain representatives, with a portion of seats chosen by party list to ensure that the composition of the legislature corresponds to the national vote in the aggregate.

The reason why politics is polarizing here, however, is that increasingly, the important elections are the primaries, not the general elections. It is indisputable that primary voters tend to be much more partisan and ideological than general election voters. As a result, the politicians that we are left with tend to be much more partisan and ideologically driven than they might otherwise be. Result - Tea Party caucus.

By NoleLaw on 2013 10 10, 8:46 pm CDT

@137 - And from what I remember, Washington was much more a military man than anything else; his role in the actual framing of the constitution was not very significant. Parties aren't necessarily bad; there has to be some mechanism of consolidating a couple hundred million viewpoints on how a country should be run into a few workable platforms.

By NoleLaw on 2013 10 10, 8:55 pm CDT

He cannot and he will not. He's too smart for that.

By charlegman on 2013 10 10, 9:36 pm CDT

Article I, Section 8 of the Constitution clearly gives Congress alone the authority "[t]o borrow Money on the credit of the United States." The language in the Constitution could not be plainer.

Yet, this article to legitimize strategies to undermine that clear grant of Authority, to embolden the Executive Branch of the National government to take authority which is not theirs.

No wonder the public holds the legal profession in such low regard.

Truly pathetic.

By Yankee on 2013 10 11, 12:26 am CDT

Not getting enough attention at home tonight, dear?

By Anonymous on 2013 10 11, 12:38 am CDT

I recognize that younger colleagues who have seen this debt thing basically all their lives may take issue with the use of words like "insane" to describe it. But, it just keeps snowballing and snowballing, and there is no "exit strategy." The government is just going to keep kicking the can down the road until it can't be done anymore, and then there will be Hell to pay. I only hope that on some lucky day prior to that moment, I will either have set up house in a foreign country or died in my sleep.

By B. McLeod on 2013 10 11, 7:18 am CDT

Here is a comment meant to be neither pro-Left nor pro-Right --

Most of the commentators are generally ignoring the biggest issue of all, that of the Imperial Presidency. Whether it's spend baby spend politics on the Left, or don't tax my pals politics on the Right, the President is supposed to carry out the laws -- not ignore them. And certainly not make them up as he goes along.

Obama's apologists argue he won the election and need not negotiate with the Republicans in the House. But the Republicans won the same election, which is how they managed to stay in control of the House of Representatives. The country voted in a divided government, and the government was set up that way, in the Constitution, as part of the checks and balances scheme which pits one branch against the other to prevent a populist tyranny.

It's meant to prevent dictatorships like the SOCIALISTS in Germany (yes, the Nazis were socialists -- it's part of their party's name, folks, and part of their flag too, where the black Swastika is shown in a white circle, surrounded by a field of red -- the red symbolising their socialist roots). That Nazi takeover did not turn out so well, as the world learned to its sorrow.

Only if we want tp create an all powerful GREAT LEADER a la Nazi Germany or Communist Russia can we applaud any President's decision to ignore the Constitution and bypass the House. It doesn't matter if the leader is charismatic or not -- Hitler was charismatic, and Stalin had the first cult-of-personality regime the world had ever seen up until that time. So, if one likes the President (or not), that doesn't count for anything. It is the principle which counts.

Negotiation of a compromise solution which pleases neither faction is required. That is the American Way... either that, or all those civics and American Government teachers were wrong, oh, pretty much forever.

By SavannahGuy on 2013 10 11, 12:18 pm CDT

savannahguy, if anything, the past years have made clear that the president actually can do very little (at least domestically) without congressional support. And, in spite of your completely unbiased (insert sarcasm) post, something tells me you were not bemoaning a tyrannical presidency during Dubya's time in office. Am I right about that?

Also, with respect to Nazis being socialists, please see above at 36. You might learn something.

By NoleLaw on 2013 10 11, 12:28 pm CDT

Those legal scholars are out of their cotton picking minds. Article I gives congress the "power of the purse" to raise, appropriate and fund the federal government.

These peoples attempt to giver this president the power to raise the debt limit are really misguided. “The validity of the public debt of the United States, authorized by law,...." as stated in the 14th seem to forget that short clause. AUTHORIZED BY LAW. Which to this non-ivy league law school graduate means Public debt first has to originate in the House and concurred by the Senate.

By lawaggie on 2013 10 11, 1:55 pm CDT

@146 - I agree with you in principle, but that argument won't get you there.

The debt is "public" because it is funding activities and laws already approved by the Legislature.

By Anonymous on 2013 10 11, 1:56 pm CDT

@147 You're dead wrong.

What makes debt public is that the issuance of the debt has been approved by Congress. The authority that we are chatting about is described in Article 1, Section 8 as the authority "To borrow money on the credit if the United States."

The authority to appropriate money, is different from the authority to borrow or the authority to tax.

By Yankee on 2013 10 11, 2:20 pm CDT

I mean, I see that interpretation too. I didn't mean to come off as though there weren't other plausible interpretations, and I suppose I did.

I don't think your interpretation is absolutely *wrong*, I think yours is a reasonable one too.

But in my personal, subjective opinion, if we blind ourselves to the current events and what political party we favor, I think the better argument is that debt becomes "public" when it is incurred by programs that Congress has enacted.

Again, just my opinion on the *best* interpretation -- not the only *possible* interpretation.

By Anonymous on 2013 10 11, 2:25 pm CDT

There is nothing to "interpret" here. The word "borrow" is free from ambiguity.

By Yankee on 2013 10 11, 2:30 pm CDT

Wow, this entire exchange just became emblematic of why compromise and discussion is impossible with extremists.

Me: "I think I'm right, but I see your point, and it's possible that you're right instead."

You: "No, I am right and it is wrong to even suggest that there are other possibilities."

By Anonymous on 2013 10 11, 2:34 pm CDT

The question is whether Sec. 4 of the 14th amendment amended Article 1 to make it illegal for Congress to refuse to recognize US debt. Obviously, but for the 14h Amendment, Congress had the right to ignore the debt though just as obviously we can't ignore the amendments.

There is an argument that the amendment means the validity of the debt cannot be questioned, though that does not mean Congress can refuse to pay the debt. Conversely, it seems likely the framers never thought about the possibility that Congress would purposefully and willingly stiff its creditors for legal debt.

Here's the verbiage:

Section 4. 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. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

By Michael on 2013 10 11, 2:40 pm CDT

@151 There is nothing "extreme" about insisting that the very clear language of the Constitution be honored.

If there is anything 'Wow'-worthy here, it is the nihilistic notion implicit in your comment that words have no set meanings.

By Yankee on 2013 10 11, 3:03 pm CDT

No, what is wow-worthy is this idea that they have fixed meanings that magically and unquestionably always seem to line up with your modern political preferences.

I don't have any more to say here other than that I, once again, attempted to actually get you to engage in Constitutional analysis and you, once again, provide no other argument than "this is right because it is the only interpretation I will allow."

By Anonymous on 2013 10 11, 3:21 pm CDT

Can we please get back to discussing why the Nazis were not socialists, and any attempt to label them as such is absolutely ludicrous? That was the original topic of the article, after all.

By NoleLaw on 2013 10 11, 3:27 pm CDT

@154 Let's see: You want to discuss why the "Nationalist Socialist German Worker's Party" weren't composed of a bunch of Socialists, and Another Andy wants to discuss why the authority to borrow money on behalf of National government (described in Article 1, Section 8) is really a Presidential prerogative.

Now that is 'Wow'-worthy.

By Yankee on 2013 10 11, 3:47 pm CDT


I didn't realize you were 178+ years old. 1835 was the last (and only time) the US federal government was debt free...


Assuming the argument provided regarding the 14th amendment is correct, an amendment which conflicts with the original wording of the US Constitution, by definition, supercedes that original wording.


Ironic attempts to invoke Godwin's law are doomed to failure.


Failure to recognize ironic attempts to invoke Godwin's law are also doomed to failure.

By OKBankLaw on 2013 10 11, 4:38 pm CDT

Putting aside the fact that Section 4 of the14th Amendment by its terms addresses the validity of debts incurred by the warring factions during the War Between the States, what the section says "shall not be questioned" are debts of the National "authorized by law." That, of course, necessarily points you back to Article I, Section 8, which gives Congress alone the power "To borrow Money on the credit of the United States."

Put another way, EVEN IF this section applied to governmental debt OTHER THAN than debt incurred by the National government during The Late Unpleasantness, if borrowing is not authorized by Congress, this section by its terms does not apply.

By Yankee on 2013 10 11, 6:04 pm CDT

The qualifier "including" makes it clear it applies to all debt, otherwise there would be nothing else to include. Arguably this amendment requires Congress to pay all debts in existence but arguably not to incur more debt. Whoever wrote the 14th probably didn't see a day when the US could only pay its existing debts through incremental borrowing; that is, the US has to borrow to pay old debt. In any event I don't understand how Republicans, or Obama for that matter, argues that this clause does not apply to a default threat (assuming there still is a default threat: I haven't checked the news since this morning).

By Michael on 2013 10 11, 6:12 pm CDT

I'd actually argue that that the portion of Section 4 of the 14th Amendment that is modified by the terms "for services in suppressing insurrection or rebellion" only relates to the statements immediately preceding and following the comma, i.e. "including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion". But as you say, putting that aside, as I've said, amounts of money that the government owes, regardless of who they owe them to, if they are for services or goods already rendered but not yet paid for are in fact Debt.

I know you've said otherwise, but I would invite you to run your business and tell the people to whom you owe accounts payable that you won't pay them since it's not a real "debt".

By OKBankLaw on 2013 10 11, 6:17 pm CDT

Nole, I am going back to the previous arrangement. You were right.

You can't have a legal discussion with someone who refuses to reason.

By Anonymous on 2013 10 11, 6:41 pm CDT

@160 What you miss in your analysis is that the debt described in Section 4 of the 14th Amendment must be "authorized by law.” If the President issues new debt in violation of the Congressionally established debt ceiling, that debt is not "authorized by law," since only the Congress is permitted to authorize the borrowing of money.

By Yankee on 2013 10 11, 7:19 pm CDT

@159 "Whoever wrote the 14th probably didn’t see a day when the US could only pay its existing debts through incremental borrowing . . ."

Actually, that date is not yet upon us yet, since even if the debt ceiling were not raised again, the government could pay the debt service on existing debt with tax revenues alone.

By Yankee on 2013 10 11, 7:26 pm CDT

Anonymous, I do admire your perseverance, even while finding it puzzling.

@156 - By your logic, North Korea is a democratic republic.

By NoleLaw on 2013 10 11, 7:57 pm CDT


By Anonymous on 2013 10 11, 8:13 pm CDT

@165 You would not know logic if it hit you in the face.

The way you interpret the 'refusal to reason' is my refusal to buy into your lame arguments.

By Yankee on 2013 10 11, 8:32 pm CDT

Indeed Anonymous, excuse that slip up.

@157 - Godwin's Law has long been satisfied on this board, here by AndytheLawyer @24. If I am up to date on Godwin's Law jurisprudence, I think that means that he automatically loses, but the same is not true of subsequent mentions of the Nazis. If you have any authority to the contrary, I'd love to see it.

By NoleLaw on 2013 10 11, 8:33 pm CDT

Yankee, you're so cute when you realize that you've fumbled your way into a logical corner, like the Magoo of critical thinking that you are.

By NoleLaw on 2013 10 11, 8:36 pm CDT

Now that's true. I don't know what happens when there are multiple mentions of the Nazis. I would think that, under Godwin's Law, a direct comparison to Hitler would trump a vague comparison to the Nazis. Wouldn't it?

But yes, I am tired of the whole "you're wrong because I say you are" routine. I shouldn't have given it another chance. Sometimes I think he's taking out the GOP's self-destructive refusal to enter the 21st century on us. Do you know of another legal discussion forum on the internet that's good for legitimate analysis?

Anyway, the general discussion seems to be done here. I don't find any of the arguments for the Executive having that power to be an absolute slam dunk, but that's just my take on it. But unlike others, I am willing to acknowledge that, like all legal questions, especially around the Constitution, there are multiple plausible interpretations.

I think this is a tough situation because it's not one that the Founders foresaw.

But the Executive could pull a few other tricks if the Legislature refuses to play ball:
1. So Congress' power is the purse-strings? The Executive's is the military. Blockade the ENTIRE legislature in the building until the government is funded again.

2. Wait until the courts have to close. Issue a bunch of Executive Orders targeting GOP interest areas. "Well, you could sue to block them, but you'd have to fund the government first..." Then, of course, rescind the orders after the government is functioning again.

Ok, maybe they aren't the *wisest* moves politically, but I find the thought experiment entertaining!

By Anonymous on 2013 10 11, 8:57 pm CDT

@169 You suggest:

1. "[Obama could] Blockade the ENTIRE legislature in the building until the government is funded again."

Given the fact that Obama has used the Internal Revenue Service to harass his political 'enemies' (his words), your suggestion to use the military in a similiar fashion is only a short step from that. (Yep, contemplating a coup d'état is certainly an "entertaining" thought experiment. Hee Hee.)

2. You opine: "I don’t find any of the arguments for the Executive having that power to be an absolute slam dunk . . "

Not a slam dunk? You don't say?

Given the fact that the President has NO AUTHORITY whatsoever to "borrow Money on the credit of the United States" in Article II, but Congress has explicit authority to "borrow Money on the credit of the United States" in Article I, I guess getting a judge that had even a modicum of respect for the Constitution to buy this argument would be tough.

By Yankee on 2013 10 11, 9:16 pm CDT

@169 - There often is good analysis here. Reddit is not bad. I doubt you will find a corner of the internet not contaminated by the likes of Yankee; why not slog it out here, and raise the standard by not engaging him and similar other trolls? And it will be impossible to be perfect in that attempt (sometimes the b.s. is just too outrageous to ignore), but I think Franklin was on to something when he gave up trying to live a perfect life, but felt he was better off for having tried (or something to that effect).

As far as this article goes, I too don't see where the President has the authority to borrow money. And finally, Nazis. Nazis, I say.

By NoleLaw on 2013 10 11, 9:30 pm CDT

@159 Michael
I think the thing that sinks the 14th amendment clause 4 argument is clause 5. Clause 4 can only, yet again, be acted upon by Congress. The Pres has no direct power or authority when it comes to debt.

Maybe someone can help me out. I'm not sure why default is looming - I mean the IRS collects its taxes every paycheck regardless of the shutdown. Why can't we just continue to pay the interest out of those? There's a compelling argument that these debt payments do not need any further authorization by Congress to pay, since they were already authorized by Congress. (And these are debts which are just money not programs that require certain funding to operate.)

I've seen bandied about above (@95 for a synopsis) a "legistlative minority" effectively putting forth a "legislative veto." I'm not sure what is meant by "legislative minority." The Republicans are the majority of the House, so I'm not sure what is meant here. Also, the fact that the House is a representation by population gives it a little more weight (in my view) on public policy laws, even though the Representatives are generally not as elitist as Senators.

I think the question about whether the tactic is "legitimate" or "appropriate" are necessarily two different things. Legitimate - of course. Each side of Congress routinely shelves each other's bills into committees never to return. If every bill was voted on, Congress would read even less of them than they already do. It's odd to do on a spending bill for sure, but I think completely legitimate. Both the Senate and House do it and have done it in both partisan and non-partisan ways many times with many bills.

Case in point. House sends spending bill to Senate with ACA revisions. Senate strips ACA revisions without a vote. Senate sends spending bill to House. House- no vote.

Republicans look like the bad guys because the ACA is the law and the law can only be changed through repeal or amendment. And that is what they are trying to do by sticking the change in the spending bill. Nothing wrong here. But this tactic perhaps has not been used before - I don't know. Usually, it's just a blank check and the negotiations are worked out before the spending bill even comes up. (This may be the key difference between the situation now and the situations before, because Obama has not been much of a statesmen in gathering non-partisan support).

Now the question is really whether the Republican's actions are "appropriate." It's a huge political gamble and unfortunately, Obama and the Democratic Senate are playing too. I think that Republicans would have taken a lot less than they asked for, but Obama has taken a hard line, flat out refusing any negotiation. So Republicans are taking a hard line in kind. There is a lot of political capital being spent and unfortunately for both sides and for our country, it will only serve to drive the wedge between Republicans and Democrats in deeper.

Personally, I'm with B. McLeod in the sense that whatever happens, we cannot just keep spending and spending and spending above our means. One post asked above where Yankee would trim 600 Billion in spending. Well, we could trim at least half that if we didn't have debt. It's one thing to borrow and spend in time of conflict and war, but another thing when we are at relative peace. What happens if that changes tomorrow? Our deficit skyrockets and so does our debt. If we had a balanced budget, I would be in favor of a bit of measured taxation in higher tax brackets specifically for pulling down our debt because that would help our economy in the long run.

I think Yankee's argument is interesting that such a fundamental shift of entitlements with a huge program with the ACA should be passed with much more non-partisan support. Republicans had virtually no input into the bill. Sheesh, Democrats had virtually no input into the bill. This thing was practically all Obama and his appointed personnel. Now that was pretty atypical. It was all party-lines and party majorities change.

All this said, the House should take the vote and fund government. I don't think that this was the appropriate place for these tactics because its affecting millions of people and will just cost more in the long run. The ACA will fail anyway at least because the SCOTUS said that states did not have to increase their Medicare or Medicaid or whatever. The biggest to benefit from the ACA will be the insurance companies. 15% profit on coverage for 40 Million people is a lot of scratch.

By TLG on 2013 10 11, 10:39 pm CDT

They are a minority as far as the Legislature as a whole is concerned.

I understand the frustration with the ACA but that just isn't factually true. The entire thing came from conservative republicans originally. In any event, our Constitution does not make exceptions for laws the GOP did not vote for. It simply has no legal effect that the bill was partisan.

By Anonymous on 2013 10 11, 10:48 pm CDT

TLG - Normally that'd be right -- about the House being better balanced but the Republicans received about 49.5% of votes cast for members of the House; Democrats received substantially more votes. Republicans won using Gerrymandering -- really, a cheap trick to subvert Democracy; not all that different how GW "won" the 2000 election -- not by winning over voters. Now they're pretending that they have a mandate, just as GW pretended the same.

By Michael on 2013 10 11, 10:51 pm CDT

@173 - "In any event, our Constitution does not make exceptions for laws the GOP did not vote for."
I agree.

"The entire thing came from conservative republicans originally."
I don't understand. Maybe the idea came from some republicans, but it's nickname is Obamacare, IIRC, it was written under his direction, and not by any member of Congress (but maybe there was some input, I don't remember).

I think the silliest thing about the ACA is that Obama wants to tax the 1% and all (which this does, kind of), but the biggest new tax is on the scrubs not elligible for mom and dad's insurance who cannot really afford it and do not really need it.

When I was in law school - 2006-2009 - I paid for a High deductible insurance for my family. It was about $190 / month when I started and about $280 when I finished and got a job. Same plan about a year ago was $600. I don't know what conclusions should be drawn from that, or how the ACA will affect that, but from what I understand, the ACA plan options are pretty expensive.

By TLG on 2013 10 11, 11:08 pm CDT

@173 You observe: "They are a minority as far as the Legislature as a whole is concerned."

But they are a majority in the House of Representative. The Founders provided that "[a]l bills " for raising Revenue shall originate in the House of Representatives." Article I, Section 7. That gives the House the upper hand procedurally in driving this issue.

By Yankee on 2013 10 11, 11:12 pm CDT

@171 You observe: "I doubt you will find a corner of the internet not contaminated by the likes of Yankee . . "

First off, "Contaminated" is such a harsh and uncaring word. If I had any feelings, they'd be hurt.

In any case, if you are looking for a left wing echo chamber where Andy would be accepted and affirmed, let me suggest DailyKos.

By Yankee on 2013 10 11, 11:16 pm CDT

I haven't looked at the gerrymandering issues you are talking about, but I presume you mean gerrymandering in mostly Republican leaning states (because the implication is that Republican voter boards of Republican governed states would be the ones gerrymandering).

Do democrats not gerrymander? I know its illegal to gerrymander for race, but is it illegal to based on a supposed knowledge of political affiliation. The science of gerrymandering seems inexact at best and I'm dubious that it can have that much effect.

It's pretty typical that in most presidential elections you see a very fine line between the popular vote as compared to the electoral votes. How that translates to local Reps? I dunno. It's probably ok, to have some blue in a sea of red or some red in a sea of blue.

By TLG on 2013 10 11, 11:17 pm CDT

@177 - You're right, "contaminated" was rude, I apologize (though I'd bet you could handle it). Frequented I think is more appropriate. Quick couple of points in response to you at 176. 1) There is not a majority in the House that wants to keep government shut down, or to default on our debts. 2) For someone who favors a textualist approach to interpreting the Constitution, it is odd that authorizing an increase in the debt ceiling with raising revenue. Has the law been interpreted as being controlled by Art I sec 7?

@178 - It is really hard to overstate the problems that gerrymandering causes over the long term. You have consistently unrepresentative legislatures, for one. You also have more extremist politicians elected, because the only elections that matter in safe districts are primaries (many closed), in which the especially partisan voters vote in much higher proportions. In the 90s, in somewhere close to 90 House districts the elected representative was from the opposite party to the presidential candidate that carried the district. Now that number is under 20. Moderation is going, and with it come poorer policies and less potential for compromise. If you're curious about the potential impact of gerrymandering in your and other states, compare the total popular vote in your state for the House and your state legislature with the seats allocated by party; take a look at your state's map of electoral districts. How many seats are filled by a contested general election? A competitive one?

Regardless of political affiliation, I think everyone agrees that a fair competitive election system is the best. There is still no better way to ensure the best (least worst?) leaders are selected. The redistricting system needs to change.

By NoleLaw on 2013 10 12, 2:50 am CDT

@177 - meant to be "it is odd that *you equate* authorizing an increase in the debt ceiling with raising revenue"

By NoleLaw on 2013 10 12, 2:54 am CDT

I disagree with your gerrymandering argument. It happens on both sides. Look to Illinois and California where the Dems did it to keep the GOP out.

By Pacific on 2013 10 12, 10:27 am CDT

Please point me to where I suggest only one party does it. Both do when they have a chance. Politicians will game the rules to their advantage if they can; it's called self-interest. It's always wrong, and needs to be stopped, whether it's in California or Texas. I hope you can agree with me that competitive elections are much more desirable than uncompetitive ones.

By NoleLaw on 2013 10 12, 2:18 pm CDT

If elected officials act in the "self-interest" of those they represent, that is not "wrong", but rather how it was designed to work.

My representative in Congress us doing a good job.

By Yankee on 2013 10 12, 3:11 pm CDT

The reason a "default" is looming is because if the United States cannot pay its bills as they come due, it is in default. Yankee is choosing to interpret "default" narrowly so that it only applies to interest payments on the long term debt. That's a fundamentally incorrect interpretation, as anyone who's had a bill collector call upon them will tell you, or for that matter, worked in debt collection, attended a law school class on debt collection, a CLE, worked in banking, yada yada...

By OKBankLaw on 2013 10 13, 3:36 am CDT

As I have understood the media discussion, it is not only the interest. It really is like pay day loans in the sense that short-term treasuries are coming up (i.e., maturing), and the only means the government has to "pay" them is to refinance the debt (i.e., principal and interest). So, the debt is due, and they have to be able to issue new debt to "pay" it, but they can't do it under the debt limit (the accrued interest being one factor in that). We are screwed if this rolling of debt remains the only plan the government can come up with, and it's been looking that way for awhile now.

By B. McLeod on 2013 10 13, 6:21 am CDT

@183 Apparently you did not 'fundamentally' absorb my response @96.

I get the sense that you put those who have an EBT card on the same footing as those who hold sovereign debt of the United States duly issued by Congress.

By Yankee on 2013 10 13, 1:32 pm CDT

@184 Apparently you did not ‘fundamentally’ absorb my response @96.

I get the sense that you put those who have an EBT card on the same footing as those who hold sovereign debt of the United States duly issued by Congress.

By Yankee on 2013 10 13, 1:34 pm CDT


Oh, I absorbed your response. I also asked you for the list of programs you thought the President had the power to unilaterally not make payments on. Or, for that matter, the list of programs you thought would add up to the shortfall. For almost 90 responses now you've refused to say.

By the by, when Congress passes a budget that requires a President to spend money on certain things, THEY put the EBT cards on the same footing as the long term debt, not me.

By OKBankLaw on 2013 10 14, 9:02 am CDT

Yep, that is the position of the Obama Administration as ridiculous as it may be.

The financial community says otherwise.

If there is a default, it is on Obama's head.

By Yankee on 2013 10 14, 1:10 pm CDT

Only if Obama vetoes a debt ceiling increase. You see, in our country laws are passed by Congress. I think you might have been on that track before when you mentioned that the President does not have authority to appropriate funds. Ergo, a failure of Congress to pass a bill extending the debt ceiling cannot be the President's fault. Ergo, I get to point out that for the thirty-second time you contradict yourself to blame Obama for anything anyway you can. Ergo, you lose. Ergo.

By NoleLaw on 2013 10 14, 1:24 pm CDT

If there is a default it's on the Republican's, just like the shutdown is on the Republican's. It's the Republican's who refuse to pass a budget; Obama can't make them, or he would. They won't even allow the Democrat's to pass one with the help of a few Republican's. Arguing "it's on Obama's head" is every bit as disingenuous and dishonest as when terrorists arguing liberators forced them to kill a hostage, but 80%+ of the country realizes that.

Obama should announce that social security and federal pension payments will be suspended in a week because of the Republicans. That will end this quickly.

By Michael on 2013 10 14, 1:33 pm CDT

Ergo we all lose because we have a President who puts his collectivist left wing ideology over the best interests of the Nation.

If he truly loved his country, Obama would realize that he is the problem and would resign.

But he will not resign, since he loves himself more.

Not a leader.

By Yankee on 2013 10 14, 1:34 pm CDT

The democratically elected leader of our country -- who won with 332 electoral votes over the Republican candidate's 206 electoral votes -- should resign for the "best interests of the nation?" By failing to yield to the 20% that the Tea Parts represents he "will not resign, since he loves himself more [than the country]?"

I don't know if you're trying to be a troll or if you actually believe this, a belief I suspect is shared among the modern Republican. They really have transformed into a modern American fascist movement. It's amazing that you're a lawyer, assuming that you are one.

By Michael on 2013 10 14, 2:11 pm CDT

It is amazing that I am a lawyer, isn't it? Fortunately, there is yet no religious/political test to be a member of the bar

By Yankee on 2013 10 14, 3:10 pm CDT

If Orly Taitz has the right stuff to be admitted to the bar, surely you do too.

By NoleLaw on 2013 10 14, 3:17 pm CDT

It is a shame that only thing you have in your arsenal is personal attacks. In your defense, that is the modus operandi if the Political Left and why the nation is in such dire straits 5 years into the disastrous Obama Presidency.

For the good of our country, Obama should do right thing and resign.

By Yankee on 2013 10 14, 3:28 pm CDT

Sorry, but I have nothing but disdain for anyone who openly advocates abandoning our representative democracy. Come to think of it, Hans Frank was an attorney too. So are the mooncalves you like to chirp about. There is nothing amazing in merely being an attorney.

By NoleLaw on 2013 10 14, 3:42 pm CDT

At first I thought that reference to the mooncalves might be off-topic, but then, this story is about borrowing and borrowing and borrowing, and seeking to borrow more, for so long as it is possible. So, fine. I think it fits.

By B. McLeod on 2013 10 14, 4:36 pm CDT


I'm glad you speak for the financial markets. Thank heavens a savior awaits on this very board who can see the light of how financial markets will react.

You still haven't answered my question, but I'll pose you one more. When the President is presented with a duly authorized expenditure, but doesn't have the borrowing authority to pay for said expenditure, exactly where in the Constitution does the President have the ability to refuse to execute a law?

Though given your suggestions of resignations, since a large majority of the US population feels it's the Congressional Republican's fault for the current crisis, should all of them resign as well?

By OKBankLaw on 2013 10 14, 5:42 pm CDT

1. The House of Representatives approved a CR that Reid/Obama rejected. ERGO, the blame that there isn't a CR rests solely on Reid/Obama.
2. Yes, there are a number of Republicans who should resign. Senators McCain and Graham come immediately to mind. I have every confidence that their successors would do much better.
3. If it is impossible for the President to pay for an expenditure authorized by Congress because of the lack of borrowing or taxing authority, he has an excuse. Obviously, this is a theoretical discussion right now since there is no CR.

By Yankee on 2013 10 14, 5:56 pm CDT

Why isn't the House to blame for not even voting on a CR that was approved by the Senate?

By NoleLaw on 2013 10 14, 6:08 pm CDT

Which CR would that be specifically?

By Yankee on 2013 10 14, 6:18 pm CDT

Same one the House passed, sans PPACA defunding. Where have you been? Glad to see you have realized the banality of your position, your recantation of #200(1) is accepted.

By NoleLaw on 2013 10 14, 6:24 pm CDT

After the Senate put back the ObamaCare funding back in the CR on September 27th and sent it back to the House. On September 29th the House the Senate stripped out the ObamaCare funding out of the CR and sent it back to Senate.

If the allowing the National government to operate was important to the Senate, they could have approved the September 29th version of bill which reflects the consensus point between the two houses of Congress.

By Yankee on 2013 10 14, 6:48 pm CDT


Two can play at that game. If allowing the National Government to operate was important to the House, they could have approved the version of the bill which reflects the consensus point between the two houses of Congress.

The flaw in your statement is that if a consensus point existed, we wouldn't be in the current position. Consensus means a majority of both houses agree, clearly that wasn't the case.

By OKBankLaw on 2013 10 16, 9:38 pm CDT

Actually a majority of Senators and Representatives have agreed for a very, very long time, since before this fiasco started. Some number of Democrats in the House would have voted with some number of Republicans there -- a majority overall -- and there never would've been a shutdown, much less a risk of default. This was driven purely by a minority of both people and their representatives.

By Michael on 2013 10 16, 9:46 pm CDT

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