Are we heading for another Bush v Gore?
Oct. 10th, 2013 02:23 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
drwexIn a comment thread elsewhere I noted that I don't see a way for the politicians who have maneuvered themselves into the current corner to back down.
In short, I don't believe Boehner can walk back his demands to cut something out of the ACA. He managed to put down one revolt after the election last year and held his speaker post but he has to have his eye on the 2016 race now and cannot either be seen to back down or lose the support of the Tea Partiers who carry a great deal of weight in Republican presidential primaries.
I also don't see a rational out for the Democrats. Normally they could offer a concession and it would be done, but the Republicans have made clear that any opportunity to cut at Obamacare will be taken. So they'll get a cut now, and a cut with the debt ceiling and another cut with the next continuing resolution and so on. The Democrats cannot sign up for this death-of-a-thousand cuts because they know that any "compromise" now is not a true compromise.
This leaves us at an impasse and President Obama with three possible solutions, all of which (arguably) violate some laws. Think about it this way: Congress obliged the US to $100 of debt, but is only authorizing $80 of spending. Obama can:
A. Fail to pay some obligations. Quite likely illegal. There's language about "full faith and credit" in the Constitution itself. There are a lot of variations on this, including prioritization. The theory is that the US would pay all its debts... eventually. That's sometimes called "technical default" and might work for a corporation but it's illegal for a country.
B. Borrow money anyway. Quite likely illegal. The country's borrowing authority resides with Congress and is limited by statute. There's an argument that the "least illegal" thing Obama could do would be to borrow just exactly as much as is needed to pay obligations. Unfortunately, the law doesn't carry any provisions for this - it sets a hard limit, so any additional borrowing would be illegal.
C. Cut spending. Also quite likely illegal. The spending levels of the government are set by Congressional resolutions; the President has no legal power I can see to adjust them unilaterally. There's an argument popular in conservative circles that he can do this so long as the country's debt is paid, but I think the court decision that ruled the line-item veto unconstitutional applies here. The President simply is not allowed to pick and choose what to spend and what to cut.
Obama also can't "do nothing" to avoid illegality. Doing nothing turns into option A because debts come with due dates. Failing to pay those debts by those dates is a form of default. So unless Congress gets its collective head out of its collective anus and does something, Obama will shortly do something illegal.
There are two possible courses of action after that: let it go, or respond to it. Whichever way this goes there's going to be an aggrieved side and they'll want to take some action. I can see, for example, an impeachment being filed, though I doubt it would go anywhere. (I'm not enough of a Constitution wonk to know whether the Senate can refuse to take up an impeachment resolution sent over by the House, but I can guarantee you this Senate isn't going to get a majority to convict Obama of anything.)
A court case seems more likely. Determining standing (who has been injured by the President's action and thus has reason to seek redress) will be highly amusing but I imagine it'll get sorted out and then it will go fast track to SCOTUS, setting us up for a repeat of Bush v Gore.
This makes me more nervous than any of the actual illegal outcomes. I think that there's a move underway right now to price a two-year recession into the bond market, but I don't see any likelihood of serious consequences from either a default or extra borrowing. Some commenters have pointed out that a default will be expensive in that it requires pricing additional risk into US debt. That's true, but the price of US debt right now is at historic lows and it's also the go-to shelter in uncertain times. I am certain that the US will be able to fund its extra borrowing, though I hate to think what a 2% hit to growth will mean to actual real people.
In short, I don't believe Boehner can walk back his demands to cut something out of the ACA. He managed to put down one revolt after the election last year and held his speaker post but he has to have his eye on the 2016 race now and cannot either be seen to back down or lose the support of the Tea Partiers who carry a great deal of weight in Republican presidential primaries.
I also don't see a rational out for the Democrats. Normally they could offer a concession and it would be done, but the Republicans have made clear that any opportunity to cut at Obamacare will be taken. So they'll get a cut now, and a cut with the debt ceiling and another cut with the next continuing resolution and so on. The Democrats cannot sign up for this death-of-a-thousand cuts because they know that any "compromise" now is not a true compromise.
This leaves us at an impasse and President Obama with three possible solutions, all of which (arguably) violate some laws. Think about it this way: Congress obliged the US to $100 of debt, but is only authorizing $80 of spending. Obama can:
A. Fail to pay some obligations. Quite likely illegal. There's language about "full faith and credit" in the Constitution itself. There are a lot of variations on this, including prioritization. The theory is that the US would pay all its debts... eventually. That's sometimes called "technical default" and might work for a corporation but it's illegal for a country.
B. Borrow money anyway. Quite likely illegal. The country's borrowing authority resides with Congress and is limited by statute. There's an argument that the "least illegal" thing Obama could do would be to borrow just exactly as much as is needed to pay obligations. Unfortunately, the law doesn't carry any provisions for this - it sets a hard limit, so any additional borrowing would be illegal.
C. Cut spending. Also quite likely illegal. The spending levels of the government are set by Congressional resolutions; the President has no legal power I can see to adjust them unilaterally. There's an argument popular in conservative circles that he can do this so long as the country's debt is paid, but I think the court decision that ruled the line-item veto unconstitutional applies here. The President simply is not allowed to pick and choose what to spend and what to cut.
Obama also can't "do nothing" to avoid illegality. Doing nothing turns into option A because debts come with due dates. Failing to pay those debts by those dates is a form of default. So unless Congress gets its collective head out of its collective anus and does something, Obama will shortly do something illegal.
There are two possible courses of action after that: let it go, or respond to it. Whichever way this goes there's going to be an aggrieved side and they'll want to take some action. I can see, for example, an impeachment being filed, though I doubt it would go anywhere. (I'm not enough of a Constitution wonk to know whether the Senate can refuse to take up an impeachment resolution sent over by the House, but I can guarantee you this Senate isn't going to get a majority to convict Obama of anything.)
A court case seems more likely. Determining standing (who has been injured by the President's action and thus has reason to seek redress) will be highly amusing but I imagine it'll get sorted out and then it will go fast track to SCOTUS, setting us up for a repeat of Bush v Gore.
This makes me more nervous than any of the actual illegal outcomes. I think that there's a move underway right now to price a two-year recession into the bond market, but I don't see any likelihood of serious consequences from either a default or extra borrowing. Some commenters have pointed out that a default will be expensive in that it requires pricing additional risk into US debt. That's true, but the price of US debt right now is at historic lows and it's also the go-to shelter in uncertain times. I am certain that the US will be able to fund its extra borrowing, though I hate to think what a 2% hit to growth will mean to actual real people.
