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Posts Tagged ‘checks and balances’

The Constitutional Stakes in Debt Ceiling Brinkmanship

Posted by Peter M. Shane on October 14, 2013

If you don’t think the current government shutdown and fight over the debt ceiling are a threat to constitutional government, you’re not paying attention.

In my 2009 book, Madison’s Nightmare, I described a systematic “attack on checks and balances between 1981 and 2009 [that] can very much be seen as an assault on a constitutional culture built on checks and balances norms.” Iran-Contra, the government shutdowns of 1995, the Clinton impeachment, and the efflorescence of presidential power claims under Bush 43 all exemplified that attack.  Each episode was rooted in “the relentless campaign of the right wing of the Republican Party since 1981 to steer the capacities of our national government towards the fulfillment of a conservative social, economic and foreign policy agenda.”

The Republican minority in the Senate and the current GOP House majority are now intensifying that campaign.  Its results portend disaster for checks and balances.  Not only does the effort hurt the economy and undermine the quality of government service, but the GOP’s hostility towards interbranch accommodation positions the President so that he (or his successors) will be more likely to respond with initiatives that can only further corrode an institutional culture of self-restraint that is essential to constitutional government.

Consider, in this respect, the debt limit imbroglio.  Scholars and other commentators have advanced at least five options for a presidential response should Congress not raise the debt limit.

One is the trillion-dollar coin option.  The Treasury would use its facially unlimited statutory power to mint coins to create a platinum coin in a large enough denomination to avoid default and deposit it in the government’s account in the Fed.  The obvious problem with this option, which the Administration has already foresworn, is that the statute’s plain purpose is to authorize the minting of commemorative coins.  Congress could not plausibly have intended the Treasury to use its mint authority to augment the government’s borrowing capacity.  Just as bad, it might be seen as compromising the independence of the Fed, which is indispensable to its credibility.

A second is the Fourteenth Amendment option.  The President would declare the debt limit statute unconstitutional and thus inoperable at the point of default because in violation of the Fourteenth Amendment command: “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 obvious problem here, as compelling as the historically based claim may be, is that, even if the President’s constitutional judgment is correct, it is not clear that the Fourteenth Amendment authorizes the President to create a remedy.  The White House has foresworn this option also.

A third option would be some form of prioritization.  The president could claim authority under the Impoundment Control Act to defer government spending other than paying off debt in such amounts as necessary to avoid further borrowing. He would presumably cite as his legal authority 2 U.S.C. sec. 684(b)(1), which authorizes deferrals to the end of the current fiscal year “to provide for contingencies.”  Of course, it would be odd to use the Impoundment Control Act to impose what would amount to the most ambitious presidential impoundment in history.  It would be turning the Impoundment Control Act on its head.

A fourth option would be a claim of some emergency authority inherent in the Constitution’s grant of “executive power.”  As suggested by Eric Posner: “[T]he president can declare an emergency and justify borrowing by citing reasons of state. . . .The president could invoke his ‘inherent’ executive powers under Article II of the Constitution (which vests the president with mostly undefined ‘executive’ powers).”  Unfortunately, there would be no obvious limit to the reach of such a precedent.  The argument that the Vesting Clause gives the President any robust set of unspecified domestic powers is dubious, to say the least, and Professor Posner’s suggestion could easily give root to a practice of presidential decrees utterly antithetical to a separation of powers.

Finally, the option I and others would favor – but which itself would also be audacious – is what I call the “faithful execution” option.  Professors Neil Buchanan and Michael Dorf have called this the “least unconstitutional” option, but I believe it would not be unconstitutional at all – just destabilizing.  Its premise is that Congress’s failure to raise the debt ceiling would leave the President with two irreconcilable demands – carry out Congress’s spending instructions as contained in current appropriations laws, but do not borrow money sufficient to carry out those instructions and repay debts already incurred.  It is as if he were told to drive simultaneously no faster than 45 miles per hour and no slower than 60.  The President cannot do both.

The solution under this option would be to interpret the appropriations laws as implicitly authorizing sufficient borrowing to allow the President to both carry out those laws and to repay U.S. debts on time, notwithstanding the debt limit statute.  Better he ignore one instruction than many, especially since ignoring many would involve making a host of budgetary prioritization decisions that are plainly matters for Congress, not the President.

Of course, were the President to pursue this option – or any of the others – it would likely remove any incentive for Congress ever again to legislate responsibly regarding a debt ceiling.  What one commentator has written about the trillion dollar coin option is only a slightly exaggerated assessment that applies to any unilateral presidential move to get Congress out of its hole:  “It would effectively mark the demise of the three-branch system of government, by allowing the executive branch to simply steamroller the rights and privileges of the legislative branch.”

A unilateral solution would also no doubt fuel calls for the President’s impeachment, which is currently a right-wing fantasy looking for a plausible legal hook.  For certain, the decline in our pre-1981 culture of interbranch accommodation would accelerate.

A British Prime Minister, Lord John Russell, famously observed: “Every political constitution in which different bodies share the supreme power is only enabled to exist by the forbearance of those among whom this power is distributed.”  Under the U.S. Constitution, the supreme power supposedly belongs to “the People,” but the absence of forbearance among those who exercise power in the People’s name threatens to render “the People” effectively powerless.  If Congress does not relent, believe me, things will get worse.

(This post appeared originally on the blog of the American Constitution Society.)

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OLC’s Skillful Defense of President Obama’s Recess Appointments and Its Possible Aftershocks

Posted by Peter M. Shane on January 13, 2012

The Justice Department’s release of on Office of Legal Counsel (OLC) opinion regarding President Obama’s recess appointments power is a welcome display of public accountability. However one analyzes the bottom line, the opinion is a model of the genre. It is thorough in its analysis, candid about points that are novel or untested, and serious about engaging what it acknowledges to be substantial counterarguments. This is evidence of an OLC that is doing its job.

For separation of powers aficionados, what ought to most interesting is the OLC opinion’s primary line of attack. I had earlier defended the President’s right to make recess appointments even during a three-day recess – an argument that, in a footnote, the OLC opinion holds in reserve. OLC’s main conclusion, however, is that the recent pro forma sessions were of no constitutional significance in interrupting what was effectively a 20-day recess. OLC thus followed earlier Attorney General Opinions that had judged the concept of “recess” functionally, by whether “in a practical sense the Senate is in session so that its advice and consent can be obtained.”

The OLC analysis is arguably the more institutionally modest position because it is better grounded in historical precedent. Its functional approach also resonates with Supreme Court and D.C. Circuit opinions dealing with a structurally similar question, namely, when does Congress “by their adjournment” prevent the President from returning a veto message, thus triggering the President’s power of “pocket veto” – i.e., the power to prevent an enacted measure from becoming law without an actual veto if, on the tenth day following the measure’s presentation to the President, Congress is not in session to receive the President’s message. In the 1938 case of Wright v. United States, the Supreme Court held that, even when the Senate was concededly in a three-day recess, it had not prevented the President from vetoing enacted bills because the Secretary of the Senate remained available to receive the veto message. The OLC opinion, like Wright and, even more conspicuously, Wright ‘s D.C. Circuit progeny, seeks a constitutional reading that most pragmatically facilitates the system of checks and balances by respecting the core powers of each political branch.

(Interestingly, Professor Laurence Tribe had earlier offered yet a different analysis — that the Constitution confers “an irreducible minimum of presidential authority to appoint officials when the appointments are essential to execute duly enacted statutes,” and that pro forma Senate sessions during what would otherwise appear to be a substantial recess could not defeat the President’s power when such sessions “manifestly” served no purpose other than to serve as a “transparently obstructionist tactic.”)

As much as I admire the restraint and thoughtfulness of the OLC opinion, however, I have only a limited hope that it will put a stop to interbranch game-playing. Perhaps the toughest point for OLC to counter was that, during two pro forma sessions – one last summer and one this winter – the Senate actually did pass legislation by unanimous consent, thus seeming to be “in business.” OLC’s counter to this was rather technical, namely, that the scheduling orders during which the pro forma sessions were held explicitly provided that there was to be “no business conducted.” “In our judgment,” the opinion states, “the President may properly rely on the public pronouncements of the Senate that it will not conduct business (including action on nominations), in determining whether the Senate remains in recess, regardless of whether the Senate has disregarded its own orders on prior occasions.”

That’s fair enough, but let’s imagine a few scenarios. What if, for example, the Republicans take the Senate in 2012, but President Obama is reelected? It seems quite likely that the pro forma ritual will continue, but with the Senate modifying its scheduling orders to make the possibility of doing business seem more plausible. Perhaps the pro forma sessions will occur daily, rather than every three days.

Or, imagine, as is less likely, that the Democrats retain the Senate but President Obama loses the White House. The Democrats, eager to prevent controversial nominees from getting recess appointments, could well try to prevent them the old-fashioned way – by actually scheduling floor action and voting them down. Will we then see Republicans using the filibuster to prevent such votes, not in the hope that the Senate will ever approve the nominees in question, but to keep the nominations alive and the vacancies open, so President Obama’s Republican successor may appoint them during a recess?

In our analyses of President Obama’s recent appointments, both Professor Tribe and I stressed that the appointments were limited to vacancies that, if they persisted, would prevent the agencies involved from actually executing the laws they were charged with enforcing. Of course, there is no guarantee that any successor to President Obama (or even President Obama himself on another occasion) will observe such restraint.

And, on top of all of this, the President seems to have his own textually explicit nuclear option. He is authorized by Article II to adjourn Congress unilaterally “to such time as he shall think proper.” If courts interpret the Recess Appointments Clause to require adjournments of, say, ten days or more in order to be triggered, there is no obvious bar in the text to the President adjourning Congress for ten days to accomplish precisely that end.

A British Prime Minister, Lord John Russell, famously observed: “Every political constitution in which different bodies share the supreme power is only enabled to exist by the forbearance of those among whom this power is distributed.” Under our Constitution, of course, it is “the People” who hold the supreme power. But we have effectively delegated the exercise of government power to a set of partly autonomous, partly interdependent institutions to which we have allocated both authorities and dependencies in the hope of effective governance. Yet, “forbearance of those among whom . . . power is distributed” is not much in evidence these days. As much as I applaud the President’s recent actions and the skillful defense OLC has offered, I thus find it difficult not to worry about the aftershocks.

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Madisonianism Misunderstood: A Reply to Professors Posner and Vermeule

Posted by Peter M. Shane on April 8, 2011

I disagree so deeply and at so many points with The Executive Unbound: After the Madisonian Republic, the new book by Eric Posner and Adrien Vermeule, that I feel compelled to begin on a positive note.  Theirs is a challenging, provocative work.  Regular engagement with interlocutors as thoughtful and well-read as these two authors would deepen anyone’s thinking.  To those who remain normatively committed to a robust rule-of-law vision of presidential authority, they pose a more interesting challenge than do putative constitutional originalists who find the founding generation oddly sanguine (and modern) in their thinking about executive power. 

In addition, two implications emerge from The Executive Unbound that I wholeheartedly support.  One is a recognition of the challenge (the authors would say “impossibility,” which I do not endorse) of reshaping the political landscape in a way that would make the revitalization of legal checks and balances a realistic program.  The second is the importance of strengthening the institutions that check the President politically, not just legally.  I agree enthusiastically.

 For Professors Posner and Vermeule, professorial contestation about Framer intent is quaintly beside the point.  As they describe it, the Madisonian vision of checks and balances simply fails as a description of how the administrative state works.  And, because, as they depict that vision, it actually cannot be implemented, it ought not to be our normative framework either.  Instead, we should recognize that, under current institutional arrangements, we have an executive branch that can pretty much do as it pleases within constraints that are significant, but almost always more political than legal.  Our normative ideal should be the strengthening of these extralegal institutional constraints to try to insure that what the executive branch winds up doing with its inevitable discretion is at least consistent with public opinion. 

 So here are my four essential points of disagreement.  First, they misrepresent – or perhaps “ignore” is more accurate – the core aim of Madisonian constitutionalism; it is not just to avoid dictatorship, but chiefly to thwart the spirit of faction and to produce government in the public interest.  Second, I find them too uncritically enamored of a rational choice perspective on how politics operates. Third, I think the wooden checks-and-balances/rule of law vision that the authors dismiss is largely a straw man.  At least, although they do me the honor of including me by name among those whose views they are rebutting, I am quite sure they are not describing the Madisonian vision outlined in my own work.  Fourth, I reject the idea that we should dismiss a normative vision because it cannot be perfectly instituted, especially given that calls for the rule of law and calls for bolstering extralegal forms of accountability are far from mutually exclusive.

 At the heart of the legal tradition that Professors Posner and Vermeule attack is supposedly what the authors call “tyrannaphobia,” a “horror of dictatorship” that, in the American context, the authors think to be largely irrational.  But tyrannaphobia of this sort – a fear of legally unchecked rule by executive authorities who cannot be replaced by democratic means – is not what chiefly animates Madisonianism.  Madison’s central preoccupation was the curbing of faction.  “By a faction,” Madison wrote in his famous Federalist No. 10, “I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” 

Fears of imminent American dictatorship are plainly overblown in contemporary America – one wishes Glenn Beck’s viewers would take Posner and Vermeule’s argument to heart on this point.  But “faction,” in the Madisonian sense, could hardly be a more serious problem.  Americans who worried about Bush and Cheney calling off elections were paranoid.  But progressives are right on target in worrying whether our politics are driven unduly by the self-interest of the very rich and the corporations through which they wield much of their economic and political power.  What appears to be government’s frequent, even systemic inattention to equity for the poor and for the middle class is a profound democratic defect, and one that Madisonian constitutional design might have been expected to check.

Part of the problem here, I suspect, is that the preferred Posner-Vermeule analytic toolset – chiefly, rational choice political theory – has no convincing way of understanding “the permanent and aggregate interests of the community” apart from the expressed preferences of the citizenry at any given moment.  How to understand the “public interest” is a tough and enduring debate, and the authors pretty much sidestep it.  In appearing to accept public opinion as measured in polling or in elections as a full expression of the public interest, however, the authors run into a very obvious problem.  It is a problem that the authors actually diagnose astutely with regard to Congress. 

Posner and Vermeule argue that members of Congress are likely always to under-protect checks and balances because the benefits of checks and balances will largely inure to later generations and thus cannot be captured by contemporary political actors.  But this is every bit as true of contemporary voters.  Contemporary voters, if they act totally according to rational self-interest, will quite likely under-protect America from the effects of climate change and deficit financing.  They will undervalue education, pure research – and even checks and balances and the rule of law.  But, whatever the public interest is, it must surely involve some degree of care for future welfare even at the cost of short-term sacrifice.  Nudging America towards a yet more plebiscitary politics, as Posner and Vermeule seem to prefer, is thus quite risky for the public interest for just the reasons Madison feared.  This is one of the two most fundamental reasons why I think the authors’ exclusive reliance on rational choice theory to evaluate both political behavior and institutional design is misguided. 

The second reason is that rational choice theory largely ignores the mix of ideology, identity and self-conception that motivates much political behavior. In my own discussions of the rule of law, I emphasize the importance of these factors as they operate within government institutions to undergird the norms, customs and conventions that give life to the rule of law.  Posner and Vermeule dismiss any reliance on such emergent behaviors as having explanatory or normative value because champions of their importance, such as I, have not rigorously specified exactly how such behaviors work.  That is a fair challenge, although I hasten to point out that it’s a challenge to Posner and Vermeule’s own work, as well.  In relying on Americans’ skepticism towards executive overreaching and their practices in becoming informed citizens, Posner and Vermeule are also relying on norms, customs and conventions.  They just locate the relevant norms, customs and conventions in the electorate, not in the government.

The “rule of law” vision that Posner and Vermeule expressly dismiss is a vision in which rules enacted by Congress and enforced by courts are sufficient, in and of themselves, to constrain executive behavior.  The more discretion that the executive enjoys that is unchecked by enforceable rules, the less “law” there is in our “rule of law.”  But the “rule of law” for which I yearn in Madison’s Nightmare: How Executive Power Threatens American Democracy (2009) is not this either/or version.  To quote myself:

“What [I describe] is a version of the rule of law that is not formalistic, but institutional.  Checks and balances, in operation, depend on an assemblage of norms, cooperative arrangements, and informal coordination activities that actually fit the political science definition of an “unstructured institution.”  James March and Johan Olsen have usefully defined an “institution” as “a relatively enduring collection of rules and organized practices, embedded in structures of meaning and resources that are relatively invariant in the face of turnover of individuals and relatively resilient to the idiosyncratic preferences and expectations of individuals and changing external circumstances. Sometimes the relevant “rules and organized practices” are exceedingly clear and documented, like the rules inside the cover of a board game.  But sometimes, as political scientist Kenneth Shepsle has pointed out, these rules and practices “are more amorphous and implicit rather than formalized.”  We still recognize them as institutions because they “may be described as practices and recognized by the patterns they induce,” but compared to, say, a game of golf, they are, relatively speaking, “unstructured institutions.” Understanding the rule of law as an unstructured institution provides a far more attractive account of what citizens expect from a “government of laws” and a far more plausible account of why they might just get it; it provides an account of government behavior that rests on observable patterns of actual human behavior, not just the formal specification of legal rules in the form of written documents.”

Posner and Vermeule may regard this account as insufficiently rigorous, or they may say that “norms, cooperative arrangements, and informal coordination activities” are really politics, not law.  To those who participate in them, however, they are recognizable as law, and that recognition is a great deal of what gives them whatever institutional power they have.

At the proverbial end of the day, it may be that Posner and Vermeule would be content to accede to all these objections, at least for argument’s sake, but might still say: They don’t matter.  In their opening footnote, they are generous enough to group me with Bruce Ackerman and Theodore Lowi as authors of “diagnoses of decline” that are “so convincing” that we should recognize our “prescriptions for revival” of the rule of law as “futile.”  What Ackerman, Lowi, and I describe of political behavior, in other words, “if true, rule[s] out [our] prescriptions.”  It may be that the authors are more about right about this than I would like to acknowledge, although either accepting or rejecting their proposition involves as much faith as analysis, and I have always been the optimist in my particular household. 

I do want to say, however, that the impossibility of vindicating the rule of law at every turn is not a persuasive argument for abandoning the rule of law as a normative vision.  Every ethical system worth its salt aims for a pervasiveness of virtue that no one expects to be realized fully.  Moreover, along with Cynthia Farina (most notably among administrative law scholars), I have long argued that democratic legitimacy cannot be convincingly grounded on any one foundational principle.  The rule of law is important, but not everything.

Abandoning the rule of law as a normative vision seems especially foolish when embracing a political agenda for the reinvigoration of checks and balances is arguably consistent with the reform program that Posner and Vermeule would prefer.  They urge reformers to shift attention away from the rule of law “to the political constraints on the president and the institutions through which those political constraints operate–chief among them elections, parties, bureaucracy and the media.”  But the reform agenda they advocate would significantly enhance the prospects for the rule of law, as well.  Near the end of Madison’s Nightmare, I wrote: “[T]he practice of constitutionalism within the halls of American government will be shaped, most profoundly, by changes in the quality of our collective democratic life in society at large.”  Rule of law advocates would surely be enthusiastic if Americans constructively turned to the checking potential of our extralegal institutions.

To return to my positive note, I do hope readers more sympathetic to my critique than to The Executive Unbound will nonetheless take time to wrestle with the Posner-Vermeule line of reasoning.  They have pitched their ideas in a distinctly academic voice, but the debate they are seeking goes to the heart of American constitutionalism.  At the core of the debate are very different approaches to both democracy and public welfare.  Professors Posner and Vermeule render a service in adding to that debate an important and distinctive set of arguments.

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Obscure Cases and Important Principles

Posted by Peter M. Shane on October 27, 2009

I am currently participating in on online debate under the auspices of the Federalist Society regarding a case hardly anyone has heard of that is now before the U.S. Supreme Court.  The case is called Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB)It poses the question whether Congress acted permissibly in structuring the PCAOB.  Its members are (a) appointed by the Securities and Exchange Commission, not by the President, and (b) removable only by the Securities and Exchange Commission – not by the President – and only for good cause.

The Federalist Society has asked its debaters to discuss whether these appointment and removal provisions are unconstitutional.  As my colleague Hal Bruff writes in a forthcoming essay, this is the kind of case only separation of powers cognoscenti typically follow, even though it has the potential – albeit, just slight potential – to revolutionize our separation of powers law.  That is because, if the Court overturns the removal provisions, it may well cast into doubt the great many statutes that create administrative agencies throughout the federal government, such as the Federal Trade Commission and the Federal Communications Commission.  It could instead vindicate so-called Unitary Executive Theory, which I try to refute in Madison’s Nightmare.

I have reprinted below my opening entry in the debate.  Anyone intrigued can follow the unfolding conversation here.  The other invited participants are Martin Flaherty, Andrew G. McBride, Gillian E. Metzger, Donna M. Nagy, Tuan Samahon, Christian G. Vergonis, and Christian J. Ward.

* * *

Appointments: There’s no real doubt that members of the PCAOB are “officers of the United States.” That is, they have duties regarding the implementation of public law that go beyond the tasks Congress could assign to one of its own committees. Hence, its members must be appointed pursuant to the Appointments Clause. And, under the Appointments Clause, they must be appointed by the President with the advice and consent of the Senate, unless they are “inferior officers,” in which case they may be appointed by the president alone, by the head of a department, or by a court of law.

This is the PCAOB’s greatest vulnerability. The members of the PCAOB may well not be “inferior” in the constitutional sense. Although members are removable for good cause by the SEC, their jurisdiction is far more wide-ranging than that of the independent counsel upheld in Morrison v. Olson. The Court could leave Morrison and its antecedents intact, and enjoin the enforcement operations of the PCAOB on noninferiority grounds. This is doctrinally the most modest way to overturn the PCAOB, and I predict this will be the result, with hardly any greater implications for separation of powers law.

If PCAOB members are deemed “inferior,” then I do not see any other vulnerability on the appointments side. As the Court observed in Morrison, Congress’s discretion in choosing among the designated modes of appointing inferior officers is not limited by the text. There would not be anything constitutionally anomalous in giving the SEC power to appoint people with expertise in corporate accounting.

Removal: The more controversial question involves the limitation on direct removals by the President. It is not controversial under Morrison v. Olson. Morrison said that limitations on presidential removal powers are permissible unless they interfere with the President’s capacity to discharge his constitutionally assigned functions. The President, of course, is constitutionally obligated to take care that the laws be faithfully executed. If a PCAOB member is derelict in this regard, the President must be able to instigate that member’s discharge. Under Sarbanes-Oxley, he cannot do so directly – which was also true in Morrison v. Olson – but the failure of the SEC to correct any such dereliction would presumably be good cause for the dismissal of any recalcitrant SEC Commissioner. Under Morrison, this holds up.

The rub, of course, is that there may well be five members of the Court who would now like to overrule Morrison – Roberts, Alito, Scalia, and Thomas, almost certainly, and quite possibly, Kennedy, who recused himself in Morrison. Reaching out to limit or reverse Morrison, however, would be a conspicuous piece of judicial immodesty, especially since the PCAOB can be invalidated on the less controversial ground of noninferiority.

I thus predict the Court will not attack Morrison – but this may be wishful thinking on my part because (a) I agree with Morrison and (b) modesty on the Roberts Court is, at best, an occasional virtue.

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