How to choose the least unconstitutional option: Lessons for the president (and others) from the debt ceiling standoff

Columbia Law Review

Volumn 112, Issue 8, 2012, Pages 1175-1243

  Buchanan, Neil H ^a   Dorf, Michael C ^b  

^a MONASH UNIVERSITY   (Australia)

^b MIT Sloan School of Management   (United States)

Author keywords

[No Author keywords available]

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EID: 84868604623     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (354)

1. See Department of Defense and Full-Year Continuing Appropriations Act, 2011, Pub. L. No. 112-10, 125 Stat. 38.
2. See Alan Silverleib & Tom Cohen, Latest Deficit Talks End with a Tense Exchange, CNN (July 13, 2011), http://articles.cnn.com/2011-07-13/politics/debt.talks_1_debt-ceiling-short-term-extension-debt-ceiling-hike (on file with the Columbia Law Review) (outlining evolving brinksmanship between very conservative Republicans and President in debt ceiling debate).
3. Id.
4. U.S. Const. amend. XIV, § 4.
5. See Elspeth Reeve, Is the Debt Ceiling Unconstitutional?, Atlantic Wire (June 29, 2011), http://www.theatlanticwire.com/politics/2011/06/debt-ceiling-unconstitutional/39408/(on file with the Columbia Law Review) (summarizing and excerpting legal reasoning in support of presidential authority to disregard debt ceiling on grounds it is unconstitutional).
6. Id.
7. E.g., Aaron Blake, Obama Won't Find Safe Harbor in 14th Amendment, The Fix, Wash. Post (July 29, 2011, 12:44 PM), http://www.washingtonpost.com/blogs/the-fix/post/why-the-14th-amendment-is-not-a-good-option-for-obama/2011/07/29/gIQAynPOhI_blog.html (on file with the Columbia Law Review).
8. See Joe Conason, Exclusive Bill Clinton Interview: I Would Use Constitutional Option To Raise Debt Ceiling and "Force the Courts To Stop Me," Nat'l Memo (June 19, 2011, 4:03 AM), http://www.nationalmemo.com/exclusive-former-president-bill-clinton-says-he-would-use-constitutional-option-raise-debt (on file with the Columbia Law Review) (comparing former President Clinton's own budget battle experiences to President Obama's and reporting Clinton's belief that Obama should raise debt ceiling unilaterally).
9. Cf. Bruce Bartlett, The Debt Limit Options President Obama Can Use, Fiscal Times (Apr. 29, 2011), http://www.thefiscaltimes.com/Columns/2011/04/29/The-Debt-Limit-Option-President-Obama-Can-Use.aspx (on file with the Columbia Law Review) (noting rapid turnover of three-month Treasury bills should quickly resolve these fears and limit impact of problem).
10. See Laurence H. Tribe, A Ceiling We Can't Wish Away, N.Y. Times, July 8, 2011, at A23 [hereinafter Tribe, Ceiling We Can't Wish Away] (arguing Fourteenth Amendment does not authorize president to exercise legislative power to prevent constitutional violations).
11. U.S. Const. art. I, § 8, cl. 2.
12. see Tribe, L. H., Ceiling We Can't Wish Away, supra note 10 (describing allocation of borrowing power to Congress).
13. See This Week (ABC television broadcast July 24, 2011), available at http://abcnews.go.com/Politics/week-transcript-timothy-geithner/story?id=14147682 (transcript on file with the Columbia Law Review) (indicating administration had decided after careful review that nuclear option was not workable solution).
14. see also Letter from George W. Madison, Gen. Counsel, Treasury Dep't, to N.Y. Times (July 8, 2011), available at http://www.treasury.gov/connect/blog/Pages/Fact-Check-Treasury-General-Counsel-George-Madison-Responds-to-New-York-Times-Op-Ed-on-14th-Amendment.aspx (on file with the Columbia Law Review) (explaining Secretary Geithner had always viewed the debt limit as a binding legal constraint that can only be raised by Congress).
15. See Budget Control Act of 2011, Pub. L. No. 112-25, § 401, 125 Stat. 240, 259-63 (establishing Joint Select Committee on Deficit Reduction to recommend legislation that would reduce deficit by $1.5 trillion by 2021).
16. Id. § 302, 125 Stat. at 256-59.
17. Some members of Congress have indicated that they wish to repeal the scheduled cuts. E.g., 158 Cong. Rec. H3072 (daily ed. May 17, 2012) (statement of Rep. Scott Rigell) (Sequestration is not a rational course correction, but instead it is a violent, sudden, and severe budget cut, the adverse consequences of which cannot be overstated.); 158 Cong. Rec. H2604 (daily ed. May 10, 2012) (statement of Rep. Howard McKeon) (I rise today in strong support of [repealing the scheduled cuts].).
18. See infra notes 60-61 and accompanying text (discussing statements of Senate Minority Leader Mitch McConnell and House Speaker John Boehner).
19. U.S. Const. art. II, § 3.
20. See id. art. IV, § 3, cl. 2 (The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States).
21. See 31 U.S.C § 5115(b) (2006) (The amount of United States currency notes outstanding and in circulation... may not be more than $300,000,000).
22. U.S. Const. art. I, § 8, cl. 5.
23. See Michael Abramowicz, Beyond Balanced Budgets, Fourteenth Amendment Style, 33 Tulsa L.J. 561, 580-89 (1997) [hereinafter Abramowicz, Beyond Balanced Budgets] (arguing public debt in Section 4 of Fourteenth Amendment encompasses only financial obligations stemming from agreements and Social Security is not such a financial obligation).
24. Michael Abramowicz, Train Wrecks, Budget Deficits, and the Entitlements Explosion: Exploring the Implications of the Fourteenth Amendment's Public Debt Clause 43-45 (George Wash. Univ. Law Sch. Pub. Law & Legal Theory Paper No. 575, 2011) [hereinafter Abramowicz, Train Wrecks], available at http://papers.ssrn.com/abstract=1874746 (on file with the Columbia Law Review) (same).
25. John Berlau, Constitutional Nonsense on Debt, Nat'l Rev. Online (July 8, 2011, 12:00 PM), www.nationalreview.com/articles/271329/constitutional-nonsense-debt-john-berlau (on file with the Columbia Law Review) (arguing public debt does not include government benefits).
26. Cf. Garrett Epps, Our National Debt "Shall Not Be Questioned," the Constitution Says, Atlantic (May 4, 2011, 7:00 AM), http://www.theatlantic.com/politics/archive/2011/05/our-national-debt-shall-not-be-questioned-the-constitution-says/238269/ (on file with the Columbia Law Review) (noting perhaps only outright repudiation of obligations, but not temporary default or delay in payment, is barred).
27. Michael Stern, "Threatening Default: A Response to Professor Balkin, Point Ord. (July 1, 2011, 6:04 PM), http://www.pointoforder.com/2011/07/01/threatening-default-a-response-to-professor-balkin/ (on file with the Columbia Law Review) (arguing only outright repudiation of public debt violates Section 4 of Fourteenth Amendment).
28. See Jack M. Balkin, 3 Ways Obama Could Bypass Congress, CNN (July 28, 2011), http://articles.cnn.com/2011-07-28/opinion/balkin.obama.options_1_debt-ceilingcongress-coins [hereinafter Balkin, Ways to Bypass] (on file with the Columbia Law Review). Because 31 U.S.C. § 5112(k) grants the Secretary of the Treasury the discretion over the denomination and issuance of platinum bullion coins, it could arguably be used to circumvent the statutory limit on currency notes.
29. See infra Part III.C.
30. We do not directly consider the proposal of Professors Eric Posner and Adrian Vermeule, under which the President could simply issue new debt pursuant to his supposed paramount duty to ward off serious threats to the constitutional and economic system." Eric A. Posner & Adrian Vermeule, Obama Should Raise the Debt Ceiling on His Own, The Opinion Pages, N.Y. Times (July 22, 2011), http://www.nytimes.com/2011/07/22/opinion/22posner.html (on file with the Columbia Law Review).
31. Posner and Vermeule do not attempt to tie this duty to any particular constitutional text. Indeed, in their view, the very effort to constrain authority by law in emergencies is in vain.
32. See Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic 90-93 (2010) (characterizing actual workings of American administrative law as exemplifying theory of Carl Schmitt).
33. Although we reach the same conclusion as Posner and Vermeule about the best course of action for the President, we do not endorse their view that emergencies provide extralegal justifications. Indeed, our premise is more nearly the opposite: We argue that even when the president has no lawful options, his decisions are constrained by law.
34. See Tribe, L. H., Ceiling We Can't Wish Away, supra note 10.
35. See Neil H. Buchanan, The Debt Ceiling Law Is Unconstitutional: A Reply to Professor Tribe, Verdict (July 11, 2011), http://verdict.justia.com/2011/07/11/the-debtceiling-law-is-unconstitutional (on file with the Columbia Law Review) (disagreeing with Professor Tribe's view that debt ceiling's unconstitutionality would leave President unable to provide remedy); see also.
36. Neil H. Buchanan, The Debt-Limit Crisis: A Problem That Will Keep Coming Back Unless President Obama Takes a Constitutional Stand Now, Verdict (July 7, 2011), http://verdict.justia.com/2011/07/07/the-debt-limit-crisis (on file with the Columbia Law Review) (arguing that debt limit is dangerous policy and that results of default by federal government would be catastrophic).
37. See, e.g., Laurence Tribe, Professor Tribe Replies to Professor Buchanan Replying to Professor Tribe Replying to, Dorf on L. (July 21, 2011, 12:20 AM), http://www.dorfonlaw.org/2011/07/professor-tribe-replies-to-professor.html (on file with the Columbia Law Review) (replying to Buchanan and arguing debt ceiling only creates crisis in combination with other acts of Congress).
38. The Article also builds on some observations that first appeared in Michael C. Dorf, The Debt Ceiling Crisis Reveals a Constitutional Gap: How To Choose Among Unconstitutional Options, Verdict (Aug. 1, 2011), http://verdict.justia.com/2011/08/01/the-debt-ceiling-crisis-reveals-a-constitutional-gap (on file with the Columbia Law Review) (arguing American legal precedents and tradition provide scant guidance for actors facing choice among unconstitutional options).
39. See infra text accompanying notes 156-163.
40. See generally 31 U.S.C. § 1105 (2006) (detailing requirements for yearly budget submitted by president).
41. Annual decisions only partly determine spending and taxing levels, because most spending-so-called entitlements, interest on the national debt, and other mandatory spending-as well as most of the tax code is enacted in statutes that remain in force from year to year.
42. See, e.g., 42 U.S.C. § 401 (a)-(b) (2006) (appropriating funds collected out of various income taxes to Federal Old-Age and Survivors Insurance Trust Fund as well as Federal Disability Insurance Trust Fund).
43. see also Josh Chafetz, Congress's Constitution, 160 U. Pa. L. Rev. 715-729 (2012) (noting in 2010 fiscal year, sixty-one percent of federal spending was mandatory spending, and percentage has been increasing over time).
44. Of course, Congress could exert more annual control over spending by replacing entitlement formulae with annual appropriations.
45. See id. (characterizing entitlement provisions as ced[ing] the institutional advantage of annual appropriations to president).
46. See Allen Schick, The Federal Budget: Politics, Policy, Process 3 (3d ed. 2007) (In national politics, it is now the age of budgeting.).
47. Id. at 2-4, 108-10 (noting increased political gridlock as federal budget grew).
48. Generally, federal agencies cannot use funds until they have been appropriated, via the yearly budget or some other statutory authorization.
49. See 31 U.S.C. § 1347 (An agency in existence for more than one year may not use amounts otherwise available for obligation to pay its expenses without a specific appropriation or specific authorization by law.).
50. See id. § 321(a)(3) (The Secretary of the Treasury shall... issue warrants for money drawn on the Treasury consistent with appropriations).
51. Id. § 1105(a)(12)-(22).
52. See id. § 3302(b) (requiring deposit of all public funds into Treasury).
53. id. § 3720 (requiring money collected by other agencies to be deposited with Treasury). For an example of the various fees collected by the Treasury.
54. see the Freedom of Information Act (FOIA) fee schedule detailed by 31 C.F.R. § 1.7 (2012) (outlining four categories of FOIA requesters and defining fees and fee waiver provisions).
55. See, e.g., 31 U.S.C. § 3104(a) (The Secretary of the Treasury may borrow on the credit of the United States Government amounts necessary for expenditures authorized by law).
56. id. § 3102(a) (allowing Treasury Secretary to issue bonds).
57. id. § 3103(a) (allowing Treasury Secretary to issue notes).
58. Net repayment of debt last occurred during the late Clinton administration, as the public debt shrank from $3,772.3 billion in 1997 to $3,319.6 billion in 2001.
59. Cong. Budget Office, The Budget and Economic Outlook: Fiscal Years 2010 to 2020, at 126 (2010), available at http://www.cbo.gov/doc.cfm?index=10871&type=1 (on file with the Columbia Law Review).
60. See supra note 30.
61. Reflecting this reality, every federal budget must include an up-to-date report to Congress on the level of federal debt. 31 U.S.C. § 1105(a)(10), (36).
62. See supra note 37.
63. See 31 U.S.C. § 3111 (allowing Treasury to issue new obligations in order to redeem or refund outstanding bonds, notes, bills, and certificates).
64. See, e.g., Jacqueline Murray Brux, Economic Issues and Policy 393 (5th ed. 2010) (defining national debt).
65. See 31 U.S.C. § 1105(a)(21)(B) (requiring president to submit to Congress budget showing specific aspects of the program of, and appropriations for, each agency).
66. id. § 1105(a)(21)(C) (requiring this budget to include estimated goals and financial requirements). For an example of such a published estimate.
67. see Office of Mgmt. & Budget, Analytical Perspectives: Fiscal Year 2012 Budget of the U.S. Government 115-18 (2012) [hereinafter OMB, Analytical Perspectives], available at http://www.whitehouse.gov/sites/default/files/omb/budget/fy2012/assets/spec.pdf (on file with the Columbia Law Review).
68. See, e.g., OMB, Analytical Perspectives, supra note 44, at 119 (During the budget execution phase, the Government sometimes finds that it needs more funding than the Congress has appropriated for the fiscal year because of unanticipated circumstances.).
69. See, e.g., 157 Cong. Rec. H5854-55 (daily ed. Aug. 1, 2011) (statement of Rep. Tom Reed) (Mr. Speaker, $14.4 trillion; $1.6 trillion every year added onto that national debt. The people in November, 2010, spoke loudly They want us to get our fiscal house in order.).
70. Cong. Rec. H5678 (daily ed. July 28, 2011) (statement of Rep. Jerry McNerney) (Democrats and Republicans agree that raising the Federal debt is unsustainable, that the default is absolutely unacceptable, and that we must set our country on a course of fiscal responsibility.).
71. See, e.g., Pew Research Ctr. for the People & the Press, Frustration with Congress Could Hurt Republican Incumbents 17 (2011), available at http://www.people-press.org/files/legacy-pdf/12-15-11%20Congress%20and%20Economy%20release.pdf (on file with the Columbia Law Review) (finding seventy-six percent of respondents believe debt is major threat to national economy).
72. See, e.g., 175 Cong. Rec. H7637 (daily ed. Nov. 16, 2011) (statement of Rep. Michael McCaul) (Our debt burden in this country is so heavy, it is no longer simply a financial issue; it is a moral issue. We have spent and spent, racking up astronomical debt that will dampen the American Dream for our children and grandchildren.).
73. This is a grossly inaccurate view of the underlying reality, in no small part because money borrowed today may be put to productive use that will benefit those very children and grandchildren. For example, the government may purchase land they can use for recreation or pay teachers to educate them. But this is not the place for us to argue against the view that the government faces a long-term fiscal crisis or to suggest that even if such a crisis looms, efforts to redress it should be delayed until a period of sustained economic growth. For further discussion of these issues.
74. see generally Neil H. Buchanan, Good Deficits: Protecting the Public Interest from Deficit Hysteria, 31 Va. Tax Rev. 75 (2011) (arguing many deficit fears are unfounded and proposing establishment of independent agency to identify spending projects that warrant debt financing).
75. Neil H. Buchanan, What Do We Owe Future Generations?, 77 Geo. Wash. L. Rev. 1237 (2009) (arguing that likely higher living standards of future generations undercut claim that current public debt unfairly disadvantages such future generations). The salient point here is that the widespread perception of the need for deficit reduction has been lately driving federal budgetary priorities.
76. Second Liberty Bond Act of 1917, Pub. L. No. 65-43, 40 Stat. 288.
77. Amendment to Second Liberty Bond Act, Pub. L. No. 76-201, 53 Stat. 1071 (1939).
78. see also D. Andrew Austin & Mindy R. Levit, Cong. Research Serv., RL 31967, The Debt Limit: History and Recent Increases 3 (2011) (describing history of debt ceiling, including 1939 changes that created aggregate ceiling of all government debt).
79. 31 U.S.C. § 3101 (2006).
80. See Schick, A., supra note 31, at 124.
81. This is not an insignificant sum. At the end of fiscal year 2011, gross federal debt was approximately $14.8 trillion, while the debt actually held by the public (which includes all lenders, foreign and domestic, as well as the Federal Reserve System, but not interagency debt within the federal government) was approximately $8.5 trillion. U.S.
82. Federal Debt by Year, USGovernmentSpending.com (Aug. 3, 2012), http://www.usgovernmentspending.com/federal_debt(on file with the Columbia Law Review). The difference-more than one-third of gross debt-was mostly the internal obligations in the Social Security Trust Funds.
83. See Dep't of the Treasury Fin. Mgmt. Serv., Treasury Bull., June 2012, at 21 tbl.FD-1 (detailing debt totals and holders for fiscal year 2011).
84. See 31 U.S.C. § 3101(b) (The face amount of obligations issued under this chapter and the face amount of obligations whose principal and interest are guaranteed by the United States Government (except guaranteed obligations held by the Secretary of the Treasury), may not be more than $14,294,000,000,000, outstanding at one time).
85. To be clear, even denominating a debt limit in percentage-of-GDP terms could have perverse consequences, under certain circumstances. During a recession, for example, GDP falls (by definition). If the debt were limited to a fixed percentage of GDP, the debt limit statute would affirmatively require the president to decrease spending or raise taxes in the teeth of the recession. This would mean that a percentage-of-GDP limit could force decisions that would actively reinforce the negative trend of the economy. Although we do not endorse a debt limit statute in any form, we do note that expressing a debt limit as a percentage of the economy's potential GDP would avoid this problem, because potential GDP generally is invariant to short-term recessionary fluctuations in the economy.
86. See Austin D. A., & Levit, M. R., supra note 51, at 15 tbl.2 (listing increases in debt limit since 1993).
87. See id. at 12-15 (discussing process of raising debt ceiling from 2008 to 2010).
88. See, e.g., 148 Cong. Rec. 8718 (2002) (statement of Rep. Jim Turner) (The statutory debt ceiling is a law that provides the maximum amount that our Federal Government can go into debt. It is one of the few tools that we have to promote fiscal responsibility and require fiscal discipline in this House.).
89. See 157 Cong. Rec. S5219 (daily ed. Aug. 2, 2011) (statement of Sen. Mitch McConnell) ([N]ever again will any President, from either party, be allowed to raise the debt ceiling... without having to engage in the kind of debate we have just come through.).
90. See Jonathan Weisman, Republicans Pledge New Standoff on Debt Limit, N.Y. Times, May 16, 2012, at A1 (reporting House Speaker John A. Boehner's vow to hold up another increase in the federal debt ceiling unless it was offset by larger spending cuts).
91. See Budget Control Act of 2011, Pub. L. No. 112-25, § 302(a), 125 Stat. 240, 25657 (covering deficit reduction).
92. Alan Silverleib & Tom Cohen, White House, Congressional Leaders Reach Debt Deal, CNN (July 31, 2011), http://articles.cnn.com/2011-07-31/politics/debt.talks_1_debt-ceiling-debt-deal-deficit-reduction (on file with the Columbia Law Review) (summarizing terms of debt ceiling deal).
93. See supra notes 36-37 and accompanying text.
94. See, e.g., 157 Cong. Rec. H5295-96 (daily ed. July 21, 2011) (statement of Rep. Sheila Jackson Lee) (questioning constitutionality of debt limit).
95. Jonathan H. Adler, Is the Debt Limit Constitutional-Part Deux, Volokh Conspiracy (July 3, 2011, 1:09 PM), http://volokh.com/2011/07/03/is-the-debt-limit-constitutional-part-deux/ (on file with the Columbia Law Review) (summarizing academic debate around constitutionality of debt ceiling).
96. Jack Balkin, The Legislative History of Section Four of the Fourteenth Amendment, Balkinization (June 30, 2011, 1:59 PM), http://balkin.blogspot.com/2011/06/legislative-history-of-section-four-of.html [hereinafter Balkin, Section Four] (on file with the Columbia Law Review).
97. Garrett Epps, The Speech Obama Could Give: The Constitution Forbids Default, Atlantic (Apr. 28, 2011, 3:56 PM), http://www.theatlantic.com/politics/archive/2011/04/the-speech-obama-could-give-the-constitution-forbidsdefault/237977/ (on file with the Columbia Law Review) (suggesting federal default would be unconstitutional).
98. U.S. Const. amend. XIV, § 4.
99. See supra notes 5--7 and accompanying text.
100. 294 U.S. 330 (1935).
101. Id. at 346-47.
102. Id. at 351-52.
103. Id. at 354.
104. The case was decided by a 5-4 vote. Although Justice Stone nominally concurred, rather than concurring only in the judgment, he wrote separately to indicate that he did not endorse the portion of the majority opinion in which the discussion of Section 4 of the Fourteenth Amendment appeared.
105. See id. at 359 (Stone, J., concurring).
106. See Abramowicz, M., Beyond Balanced Budgets, supra note 20, at 581 n.94 (noting narrowest possible construction of Section 4 would limit it to Civil War debt only).
107. See id. at 582-87 (considering but rejecting this narrow interpretation of Section 4).
108. Balkin, Section Four, supra note 64 ([T]he goal [of Section 4] was to remove threats of default of federal debt from partisan struggle.).
109. See Abramowicz, M., Beyond Balanced Budgets, supra note 20, at 582-87 (suggesting general applicability of Section 4 to non-Civil War debts).
110. Careful readers of this Article and our prior, popular writings on the debt ceiling crisis will note that our position on the meaning of Section 4 of the Fourteenth Amendment has evolved somewhat. We attribute that evolution in significant part to our enlightening exchange with Professor Tribe. Nonetheless, we continue to think that there is more to the broad reading advanced in Perry than Professor Tribe's writings suggest. For example, Professor Tribe wrote that Flemming v. Nestor, 363 U.S. 603 (1960), supports the conclusion that Section 4 does not protect Social Security recipients against having their benefits reduced.
111. Laurence H. Tribe, Guest Post on the Debt Ceiling by Laurence Tribe, Dorf on L. (July 16, 2011, 5:33 PM), http://www.dorfonlaw.org/2011/07/guest-post-on-debt-ceiling-by-laurence.html [hereinafter Tribe, Debt Ceiling] (on file with the Columbia Law Review). That is a fair point, but a limited one, for at least three reasons.
112. First, Flemming itself distinguished between mere benefits and contractual obligations, 363 U.S. at 610, and could therefore be read to provide support for more than the minimal meaning of Section 4 as applicable only to bonds. Second, the contract/benefit distinction drawn in the 5-4 ruling in Flemming may have been at least partly undermined by the later ruling in Mathews v. Eldridge, which treated Social Security benefits as protected property interests for procedural due process purposes. 424 U.S. 319, 332 (1976). Although procedural due process does not invariably protect against legislative abolition of the underlying property interest, the erosion of the contract/benefit distinction in the procedural context could have implications for its continued vitality in other contexts.
113. Hence, even in a case like Flemming, Social Security benefits might now fall on the protected side of the line. Third, taken on its terms, Flemming did not decide any issue under Section 4 of the Fourteenth Amendment, of which Perry remains the case that comes closest to providing an authoritative construction. Although Professor Tribe avers that the Constitution does not use debt synonymously with obligations, the Perry Court did.
114. See supra text accompanying note 70.
115. See Abramowicz, M., Train Wrecks, supra note 20, at 23 (noting under one interpretation of Section 4 validity of public debt is only questioned upon nonpayment).
116. Stern, M., supra note 21 (arguing more than possible default is required before validity of public debt is questioned).
117. Cf. Abramowicz, M., Train Wrecks, supra note 20, at 43-45 (arguing that reading Public Debt Clause to protect entitlements may begin[] to stretch the Clause's meaning).
118. It would be even more unreasonable to argue that private actors could be said to violate Section 4 by questioning the government's ability to repay its debts, even though the literal language of Section 4 uses the passive voice in a way that could be interpreted to apply to anybody who questions the validity of the public debt, such as a newspaper columnist who writes that the government might default. Our conclusion on this point is not driven strictly by the constitutional text, however. After all, the only other provision of the Constitution that uses the locution shall not be questioned is the Speech or Debate Clause of Article I, Section 6, and that provision has been held to shield senators and representatives against private civil actions.
119. See Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 502-03 (1975) ([T]he Clause provides protection against civil as well as criminal actions, and against actions brought by private individuals).
120. By extension, the same locution in Section 4 of the Fourteenth Amendment could also be read to protect the validity of the public debt even against private questioning. Nonetheless, such a reading, which would work a partial sub silentio repeal of the First Amendment, strikes us as beyond the realm of plausibility.
121. See Ron Paul, Default Now, or Suffer a More Expensive Crisis Later, Bloomberg (July 22, 2011, 1:00 PM), http://www.bloomberg.com/news/2011-07-22/default-now-or-suffer-a-more-expensive-crisis-later-ron-paul.html (on file with the Columbia Law Review) (arguing government has already exceeded its capability ever to repay its debt).
122. See id. (Unless major changes are made today, the U.S. will default on its debt sooner or later).
123. See 31 U.S.C. § 5118(c)(3) (2006). The Gold Reserve Act of 1934 forbade issuance of U.S. government obligations repayable in gold, although foreign central banks were still able to exchange dollars held for gold. Pub. L. No. 73-87, 48 Stat. 337. The Nixon Administration ended the latter practice in 1971.
124. See David M. Andrews, International Monetary Power 25 (2006). By contrast, the bonds at issue in Perry were payable in gold. 294 U.S. 330, 347 (1935).
125. 31 U.S.C. § 5114 (authorizing Treasury to print money). Additional power to expand the money supply rests with the Federal Reserve System.
126. See Fed. Reserve Sys., Purposes & Functions 16-18 (9th ed. 2005) [hereinafter Fed. Reserve Sys., Purposes], available at http://www.federalreserve.gov/pf/pdf/pf_complete.pdf (on file with the Columbia Law Review) (describing powers Federal Reserve uses to affect monetary supply).
127. See Francis A. Longstaff, The Flight-to-Liquidity Premium in U.S. Treasury Bond Prices, 77 J. Bus. 511-512 (2004) (noting high liquidity of U.S. Treasury bonds).
128. Id. at 525.
129. See Suresh Sundaresan, Fixed Income Markets and Their Derivatives 19-20 (3d ed. 2009) (noting [m]ost debt securities carry the risk of inflation, even those indexed to inflation).
130. See Timothy W. Koch & S. Scott MacDonald, Bank Management 493 (7th ed. 2010) (noting even full faith and credit municipal bonds and securities backed by Treasuries are still assigned default risk).
131. See Tribe, L. H., Debt Ceiling, supra note 74 (highlighting narrow view embraced by most parties to debt ceiling debate).
132. For simplicity, we refer in the text to three laws, but we have in mind three kinds of laws, because the levels of spending and taxation are themselves set by the interaction of the annual budget law, preexisting statutes governing mandatory spending, and all of the complexities of the Internal Revenue Code.
133. See Tribe, L. H., Debt Ceiling, supra note 74 (discussing relation of these three laws and how, in combination, they create constitutional problem).
134. See supra notes 50-52 and accompanying text.
135. See supra text accompanying notes 43-46.
136. Congress could specify, in advance, how taxes should be increased or spending reduced, in the event that the debt ceiling kicks in, through fallback provisions in the relevant statutes.
137. See Michael C. Dorf, Fallback Law, 107 Colum. L. Rev. 303, 304-10 (2007) (discussing policy and constitutional implications of fallback provisions). But Congress has not done so.
138. See supra notes 86-88 and accompanying text.
139. See U.S. Const. art. II, § 3 (stating president shall take Care that the Laws be faithfully executed). As Representative John Vining put it, What are [the president's] duties? To see the laws faithfully executed; if he does not do this effectually, he is responsible. To whom? To the people. Have they the means of calling him to account, and punishing him for neglect? They have secured it in the Constitution, by impeachment, to be presented by their immediate representatives
140. Julie R. O'Sullivan, The Interaction Between Impeachment and the Independent Counsel Statute, 86 Geo. L.J. 2193, 2203 (1998) (quoting 1 Annals of Cong. 594 (1789) (Joseph Gales ed., 1834) (statement of Rep. John Vining)).
141. As noted in the Introduction, we are aware that there are some plausibly constitutional methods by which the president could raise money to finance the difference between spending and taxes.
142. See supra notes 20--22.
143. Selling national parks, selling options to the Federal Reserve, and similar ideas are innovative and clever, but they strike us as perfect examples of the type of action most directly implicating at least the spirit of Section 4 of the Fourteenth Amendment. That is, if the president were seen selling Alaska back to the Russians, or minting large platinum coins, or anything along those lines, then any reasonable person would question the validity of the debt of the United States. No functioning government could engage in such Hail Mary desperation plays without undermining public confidence in all of its finances, perhaps fatally. As we explain below, even if such tactics were deemed constitutionally valid, the government should not have to try them if they would bring about financial ruin. See infra Part III.C.
144. U.S. Const. art. I.
145. Id. art. I, § 8.
146. See Gerard N. Magliocca, A New Approach to Congressional Power: Revisiting the Legal Tender Cases.
147. Geo. L.J. 119, 120 (2006) (noting question of the scope of Congress's enumerated powers is... constitutional law's oldest debate).
148. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, which do not include those powers expressly granted by Article I, Section 8, to Congress. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).
149. See, e.g., Tucker v. Ferguson, 89 U.S. (22 Wall.) 527, 575 (1874) (The taxing power is vital to the functions of government. It helps to sustain the social compact and to give it efficacy. It is intended to promote the general welfare. It reaches the interests of every member of the community.).
150. See Charles Lockhart, American and Swedish Tax Regimes-Cultural and Structural Roots, 35 Comp. Pol. 379, 385, 391-92 (2003) (explaining United States' tax revenues remain low in relation to other industrial countries because of historical fidelity to a neo-Lockean conception of limited government which stems from time of American Revolution).
151. See, e.g., Grant Dorfman, The Founders' Legal Case: No Taxation Without Representation Versus Taxation No Tyranny, 44 Hous. L. Rev. 1377-1378 (2008) (noting phrase has become 'mother's milk' of American history education).
152. U.S. Const. art. I., § 8.
153. See Roy E. Brownell II, The Constitutional Status of the President's Impoundment of National Security Funds, 12 Seton Hall Const. L.J. 1, 22-30 (2001) (discussing early laws under which President Washington was given broad discretion over appropriations through use of 'lump-sum' appropriations to expend funds or leave funds unexpended as he saw fit).
154. Cf. W. Cent. Mo. Rural Dev. Corp. v. Donovan, 659 F.2d 199, 202 (D.C. Cir. 1981) (rejecting challenge to presidential deferral of spending of allocated funds on ground that it was merely temporary, and thus not in contravention of statutory requirement that funds be spent). For further discussion of direct-spending legislation and entitlement programs.
155. see Schick, A., supra note 31, at 57-81 (discussing tactics to reduce discretionary spending and Clinton's efforts to thwart cuts in entitlement programs in 1995-1996 budget).
156. See Arthur M. Schlesinger, Jr., The Imperial Presidency 235-40 (Mariner Books 2004) (1973) (describing President Nixon's use of impoundment as instrument of policy).
157. Thomas E. Cronin, A Resurgent Congress and the Imperial Presidency, 95 Pol. Sci. Q. 209, 215-16 (1980) (discussing Nixon's impounding funds to withhold spending from certain programs and Congress's adverse reaction to his extensive policymaking).
158. Congressional Budget and Impoundment Control Act of 1974, 2 U.S.C. §§ 681-688 (2006).
159. See also Cronin, T. E., supra note 105, at 221 (noting Congress passed Act partly as means of reasserting its authority over budget).
160. 2 U.S.C. § 683.
161. see Schlesinger, A. M., supra note 105, at 477 (describing Congress's discretionary power to act on presidential rescission proposals).
162. See Schlesinger, A. M., supra note 105, at 397 (discussing history of courts ruling unanimously against impoundment).
163. see also Pennsylvania v. Lynn, 362 F. Supp. 1363, 1372 (D.D.C. 1973) (It is not within the discretion of the Executive to refuse to execute laws passed by Congress but with which the Executive presently disagrees.), rev'd, 501 F. 2d 848 (D.C. Cir. 1974).
164. Campaign Clean Water, Inc. v. Ruckelshaus, 361 F. Supp. 689, 700 (E.D. Va. 1973) (holding that impoundment of fifty-five percent of funds allocated to administration of Water Pollution Control Act was flagrant abuse of executive discretion and therefore void).
165. 524 U.S. 417, 449 (1998). Even Justice Scalia, who dissented in Clinton, acknowledged that President Nixon was mistaken in his assertion of a constitutional power to impound appropriated funds in the teeth of a congressional command to spend those funds. Id. at 468 (Scalia, J., dissenting) (citing Train v. City of New York, 420 U.S. 35 (1975)).
166. See 31 U.S.C. § 3101 (2006) (establishing public debt limit).
167. See Anita S. Krishnakumar, In Defense of the Debt Limit Statute, 42 Harv. J. on Legis. 135-156 (2005) (stating Congress has used votes on debt limit increase legislation... as a vehicle for passage of budget-reform or other unrelated legislation). The debt ceiling law has been treated as a dangerous 'weapon' used by Congress to force the President to make uncomfortable compromises on issues unrelated to the debt.
168. Id. At 138, n.18.
169. See 152 Cong. Rec. 3845 (2006) (listing then-Senator Obama as voting Nay on H.R.J. Res. 47, 109th Cong. (2006)).
170. Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct. 1324, 1333 (2010) (quoting Clark v. Martinez, 543 U.S. 371, 381 (2005)) (internal quotation marks omitted).
171. Professor Morrison has argued that in some circumstances constitutional avoidance should not apply at all within the executive branch.
172. See Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum. L. Rev. 1189, 1239-58 (2006) (pointing to institutional advantages that render statutes relatively unambiguous for executive branch actors). But we know of no argument for the executive applying the principle of constitutional avoidance more broadly than courts apply it.
173. Conn. Nat'l Bank v. Germain, 503 U.S. 249-253 (1992).
174. See Hui v. Castenada, 130 S. Ct. 1845-1853 (2010) (citing Hawaii v. Office of Haw. Affairs, 556 U.S. 163, 175 (2009)).
175. See, e.g., Whitney v. Robertson, 124 U.S. 190-194 (1888) (noting when two legal instruments conflict, the one last in date will control the other).
176. Boudette v. Barnette, 923 F.2d 754-757 (9th Cir. 1991) (When two statutes conflict the general rule is that the statute last in time prevails as the most recent expression of the legislature's will.).
177. See Janet Hook, Congress Puts Haggling Aside to Pass 2011 Budget Bill, Wall St. J., Apr. 15, 2011, at A5 (describing months of congressional conflicts leading up to passage of 2011 budget).
178. See James Risen, Debt Ceiling Increase Is Expected, Geithner Says, N.Y. Times, Apr. 18, 2011, at A14 (The administration says the legal debt limit, now just over $14 trillion, will be reached [in May]. Many economists have warned that if the ceiling is not raised, the United States will soon begin to default on its debt, and that could set off an international financial crisis.).
179. Press Release, U.S. Dep't of the Treasury, Treasury: No Change to August 2 Estimate Regarding Exhaustion of U.S. Borrowing Authority (July 1, 2011), available at http://www.treasury.gov/press-center/press-releases/Pages/tg1225.aspx (on file with the Columbia Law Review).
180. Letter from Timothy F. Geithner, Sec'y of the Treasury, to Harry Reid, Senate Majority Leader (Apr. 4, 2011) (on file with the Columbia Law Review) (describing tactics available to executive branch in order to delay default).
181. See Mindy R. Levit et al., Cong. Research Serv., R41633, Reaching the Debt Limit: Background and Potential Effects on Government Operations 12 (2011) [hereinafter 2011 CRS Report], available at http://fpc.state.gov/documents/organization/157101.pdf (on file with the Columbia Law Review) ([T]he federal government will have to issue an additional $738 billion in debt on net above the current statutory limit to finance all obligations for the remainder of [fiscal year 2013].).
182. See, e.g., Thompson v. Calderon, 151 F.3d 918, 929 (9th Cir. 1998) (noting more recent and specific statute controls over general statute).
183. Greene v. United States, 79 F.3d 1348, 1355 (2d Cir. 1996) (When two statutes are in conflict, that statute which addresses the matter at issue in specific terms controls over a statute which addresses the issue in general terms, unless Congress has manifested a contrary aim.).
184. 31 U.S.C. § 3101 (2006) (stating federal government may not at any time have outstanding debt obligations exceeding $14,294,000,000,000).
185. Of course, the President did not say that spending less than Congress had appropriated would violate the Constitution, but the conclusion follows from our earlier discussion of the impoundment controversy. See supra text accompanying notes 103-109.
186. See, e.g., Tom McClintock, Debt Reduction Means Difficult Decisions; Families Get What Washington Doesn't: Live Within Your Means, Wash. Times, July 28, 2011, at B1 (President Obama has both the legal authority and constitutional obligation to prioritize payments to prevent a default. The problem is that a lot of other bills would go unpaid).
187. see also 2011 CRS Report, supra note 120, at 13 (discussing different legislation proposals made by congressmen that would prioritize payment of certain obligations, such as principal and interest on debt or Social Security benefits, over other obligations).
188. The Financial Management Service publishes a Daily Treasury Statement that reports the amount of revenue received by the Treasury, daily withdrawals, and debt transactions on a given day.
189. See Overview, Daily Treasury Statement, Fin. Mgmt. Serv., www.fms.treas.gov/dts/overview.html (on file with the Columbia Law Review) (last updated Dec. 4, 2009).
190. See Mindy R. Levit et al., Cong. Research Serv., R41633, Reaching the Debt Limit: Background and Potential Effects on Government Operations 8 (2012) [hereinafter 2012 CRS Report], available at http://www.fas.org/sgp/crs/misc/R41633.pdf (on file with the Columbia Law Review) (stating U.S. Treasury is required to make payments on obligations as they come due because it lacks formal legal authority to establish priorities to pay obligations).
191. see also Binyamin Appelbaum, Treasury Prioritizing Payments, N.Y. Times, July 28, 2011, at B6 (noting Social Security benefits might go unpaid if debt limit is reached because of requirement that Treasury make payments as they become due).
192. In order to satisfy the Article III requirements for standing, a plaintiff must have suffered a personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief. Allen v. Wright, 468 U.S. 737, 751 (1984).
193. When the plaintiff is himself an object of the action (or forgone action) at issue... there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992).
194. Suits against the government for funds allegedly unlawfully withheld fall into this uncontroversial category.
195. See Defense Production Act of 1950, Pub. L. No. 84-774, § 101, 64 Stat. 798, 799 (codified as amended at 50 U.S.C. app. § 2071) (granting president authority to allocate resources and set domestic spending priorities in matters of national defense).
196. See Exec. Order No. 13,603, 77 Fed. Reg. 16,651, 16,652-58 (Mar. 16, 2012).
197. See supra notes 104-109 and accompanying text (describing limitations Congress placed on president's ability to change budget allocation).
198. See 2012 CRS Report, supra note 126, at 1-2 (describing drivers of federal borrowing).
199. The Bureau of the Public Debt is the agency within the U.S. Department of the Treasury that issues debt obligations to the public in order to finance government operations. This agency handles the sale of government securities on the primary and secondary markets. It also auctions about $4.5 trillion in securities annually.
200. See Bureau of the Pub. Debt, U.S. Dep't of the Treasury, Strategic Plan: Fiscal Years 2009-2014, at 8 (2008), available at http://www.publicdebt.treas.gov/whatwedo/bpdstrategicplan09-14.pdf (on file with the Columbia Law Review) (describing Bureau's duties and authority). 133. U.S. Const. art. I, § 8, cl. 2.
201. See 2012 CRS Report, supra note 126, at 11-12 (noting default could lead to a downgrade of the U.S. credit rating, an increase in federal and private borrowing costs, damage to the economic recovery, and broader disruptions to the financial system).
202. The issuance of potentially illegitimate debt could reduce investor confidence in the federal government's commitment to meet its obligations. A loss of investor confidence could result in much higher interest rates on the potentially illegitimate debt.
203. See id. at 12 (If creditors lost this confidence, the federal government's interest costs would likely increase substantially and there would likely be broader disruptions to financial markets.).
204. Again, at least initially, the lack of confidence would not be based on any underlying economic reason, but solely because the political system is creating a false crisis and a wholly unnecessary trilemma for the President. Once the crisis takes hold, of course, the damage could spread to the real economy.
205. Wholly apart from considerations of rationality and administrability, ignoring the debt ceiling would be less unconstitutional than unilateral presidential spending cuts because the former, but not the latter, would ensure that the government did not violate Section 4 of the Fourteenth Amendment by failing to meet its legal obligation to pay its bills. Cf. U.S. Const. amend. XIV, § 4. In addition, as we discussed above and elaborate more fully below, ignoring the debt ceiling best reflects what appear to be Congress's priorities. See supra Part II.A.
206. We elaborate more fully on what we mean by degrees of constitutionality in Part III, infra.
207. See Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245-2329 (2001) (Congress's delegations of power to the President logically coexist with a presumption that the President has ultimate control over all executive agency decisions.). The Internal Revenue Service, which is responsible for collecting taxes, is a bureau of the Department of the Treasury-an executive department controlled by the president.
208. See Fed. Reserve Sys., Purposes, supra note 81, at 85 (Each of the twelve Reserve Banks is authorized by the Federal Reserve Act to issue currency, and the Department of Treasury is authorized to issue coin.).
209. See William G. Jacoby, Public Attitudes Toward Government Spending, 38 Am. J. Pol. Sci. 336-336 (1994) (noting government spending is significant policy issue in U.S. election campaigns).
210. Susan A. MacManus, Taxing and Spending Politics: A Generational Perspective, 57 J. Pol. 607, 607 (1995) ([T]axing and spending issues are increasingly at the forefront of most elections).
211. Gerald F. Seib, Taxes Emerge as Defining Issue for 2012 Campaign, Capital Journal, Wall St. J. (Sept. 19, 2011, 1:16 PM), http://online.wsj.com/article/SB10001424053111903374004576580710594126704.html (on file with the Columbia Law Review) (arguing taxes are important issue in every election, but will be particularly significant in 2012 election because of nation's economic distress).
212. See Hook, J., supra note 118 (describing months of congressional conflicts leading up to passage of 2011 budget).
213. Indeed, as noted above, Congress can even prospectively couple a hard debt ceiling with a delegation to the president of the power to impound appropriated spending.
214. See supra text accompanying notes 120-122.
215. In an important article, Professors Eskridge and Ferejohn explained how judicial and administrative constructions of statutes can change the legal status quo against which the vector sum of political forces in Congress operates.
216. See generally William N. Eskridge Jr. & John Ferejohn, The Article I, Section 7 Game, 80 Geo. L.J. 523 (1992). Our point here is that a presidential decision to cancel spending or impose taxes can be equally or more disruptive and can preclude a congressional fix in much the same way.
217. See Eric A. Posner & Adrian Vermeule, Legislative Entrenchment: A Reappraisal, 111 Yale L.J. 1665, 1667-69 (2002) (discussing possibility of entrenching statutes, which cannot be changed by subsequent legislation).
218. U.S. Const. amend. XIV, § 4.
219. See Binyamin Appelbaum, Debt Ceiling Has Some Give, Until Roof Falls In, N.Y. Times, May 5, 2011, at A1 (noting Republican plan to prioritize interest payments if debt limit is reached necessarily requires spending cuts).
220. Carl Hulse, Boehner Outlines Demands on Debt Limit Fight, N.Y. Times, May 10, 2011, at A16 (reporting Speaker Boehner demands trillions of dollars in federal spending cuts in exchange for [Republican] support of an increase in the federal debt limit).
221. Jim Demint, More Spending Is a Threat to America, Politico (Jan. 24, 2011, 4:50 AM), http://www.politico.com/news/stories/0111/48020.html (on file with the Columbia Law Review) (suggesting government spending is greater threat to full faith and credit of United States than increasing debt limit).
222. See Stanley S. Surrey, Tax Incentives as a Device for Implementing Government Policy: A Comparison with Direct Government Expenditures, 83 Harv. L. Rev. 705, 706-07 (1970) (explaining tax expenditures are similar to direct spending because they promote governmental aims, and giving examples of tax expenditures found in tax laws).
223. See supra text accompanying notes 40-44.
224. see also MacManus, S. A., supra note 141, at 623 (discussing survey of different age groups showing all age groups overwhelmingly prefer spending cuts to tax increases).
225. See supra notes 45-47 and accompanying text.
226. We acknowledge that the original understanding also strongly cuts against the president unilaterally raising taxes. The Framers were no doubt aware of the longstanding parliamentary condemnation of efforts by English kings to collect taxes without legislative authorization and disapproved on grounds that can be roughly translated into the American constitutional context.
227. See Josh Chafetz, Impeachment and Assassination, 95 Minn. L. Rev. 347, 367-83 (2010) (discussing reign of Charles I and how it was seen by Benjamin Franklin).
228. Tribe, L. H., Debt Ceiling, supra note 74 (discussing King John's promise to lords, in Magna Carta, that taxation would not occur without common counsel of our kingdom, as well as condemnation, in English Bill of Rights of 1689, of efforts by James II to tax by royal prerogative).
229. But this fact only provides a further reason why a president's efforts to raise taxes unilaterally would be unconstitutional, which we freely admit. The question is whether it would be more or less unconstitutional than a president's efforts to cut spending unilaterally.
230. On that point, the original understanding is at least somewhat ambivalent, for it also provides grounds for condemning a president's unilateral spending cuts. Justice Kennedy's concurrence in Clinton v. City of New York contains ample citations to Founding-era documents in sounding its warning of the dangers of permitting the president to make spending cuts on his own. 524 U.S. 417, 449-53 (1998) (Kennedy, J., concurring).
231. Meanwhile, if we ask what contemporary Americans would regard as the paradigmatic example of executive usurpation, we think they would more likely point to President Nixon's behavior during the impoundment crisis (and more broadly) than to seventeenth-century (or earlier) English history.
232. Below, we explain that reasoning of this sort may warrant the conclusion that the courts generally should treat a political actor's choice among unconstitutional options as presenting a nonjusticiable political question.
233. See infra text accompanying note 234.
234. See Bond v. United States, 131 S. Ct. 2355-2364 (2011) (States are not the sole intended beneficiaries of federalism. An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States Fidelity to principles of federalism is not for the States alone to vindicate.).
235. U.S. Const. art. I, § 8, cl. 11-18.
236. See, e.g., id. art. IV, § 4.
237. id. amend. XVII.
238. Letter from Abraham Lincoln, President, to Winfield Scott, Commanding General, U.S. Army (Apr. 27, 1861), in 4 The Collected Works of Abraham Lincoln 347, 347 (Roy P. Basler ed., 1953) [hereinafter Collected Works of Lincoln].
239. Ex parte Merryman, 17 F. Cas. 144, 149 (Taney, Circuit Justice, C.C.D. Md. 1861) (No. 9,487).
240. See Abraham Lincoln, President, Message to Congress in Special Session (July 4, 1861) [hereinafter Lincoln, Message to Congress], in Collected Works of Lincoln, supra note 156, at 421, 430-31 (noting, among other things, Suspension Clause of Article I, Section 9 does not specify what actor may suspend the privilege of the writ when in Cases of Rebellion... the public Safety may require it (quoting U.S. Const. art. 1, § 9, cl. 2)).
241. Id. at 430.
242. See id. ([W]ould not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?).
243. U.S. Const. art. II, § 1, cl. 8.
244. See Lincoln, Message to Congress, supra note 158, at 430 (contending privilege of writ of habeas corpus relieves more of the guilty, than of the innocent and would only be violated by presidential suspension to a very limited extent).
245. See id. at 431 (Whether there shall be any legislation upon the subject, and if any, what, is submitted entirely to the better judgment of Congress.).
246. 164. See, e.g., Rust v. Sullivan, 500 U.S. 173, 201 (1991) (The Government has no affirmative duty to commit any resources to facilitating abortions (internal quotation marks and citations omitted)).
247. DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 195 (1989) ([N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.).
248. See Cass R. Sunstein, Standing and the Privatization of Public Law, 88 Colum. L. Rev. 1432, 1471 (1988) (The 'take Care' clause, however, is a duty, not a license. The clause requires the President to carry out the law as enacted by Congress.).
249. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 568-69 (1992) (opinion of Scalia, J.) ('[S]uits challenging... the particular programs agencies establish to carry out their legal obligations [are] rarely if ever appropriate for federal-court adjudication.' (quoting Allen v. Wright, 468 U.S. 737, 759-60 (1984))).
250. See Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 201 (1994) (Where the President believes that an enactment [is unconstitutional], he has the authority to defend his office and decline to abide by it).
251. See Jack Goldsmith & John F. Manning, The President's Completion Power, 115 Yale L.J. 2280-2293 (2006) ([The judiciary is reluctant] to review prosecutorial decisions [because of] the background constitutional premise that the exercise of such discretion is 'a special province of the Executive.' (quoting Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 489 (1999))).
252. See Nat'l Treasury Emps. Union v. Nixon, 492 F.2d 587, 604 (D.C. Cir. 1974) (Article II, Section 3... does not permit the President to refrain from executing laws duly enacted by the Congress as those laws are construed by the judiciary.).
253. U.S. Const. amend. XIV, § 4.
254. See Farmer v. Brennan, 511 U.S. 825, 833 (1994) ('[P]rison officials have a duty... to protect prisoners from violence ' (quoting Cortes-Quinones v. Jiminez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988))).
255. Estelle v. Gamble, 429 U.S. 97, 102-04 (1976) (holding prison officials have obligation to provide medical care to prisoners).
256. See, e.g., U.S. Const. art. I, § 8, cl. 1-2.
257. id. art. I, § 9, cl. 7.
258. Joseph Story, Commentaries on the Constitution of the United States §§ 903-908, 1051 (Boston, Hilliard, Gray & Co. 1833) (discussing Congress's powers to tax, borrow, and spend).
259. see also Clinton L. Rossiter, Constitutional Dictatorship: Crisis Government in Modern Democracies 226-27 (1948) (discussing President Lincoln's unauthorized advancement of two million dollars of unappropriated funds to three private citizens).
260. See Stephen E. Frantzich & Claude Berube, Congress: Games and Strategies 9 (4th ed. 2010) (discussing importance of persuasion and compromise in congressional coalition building).
261. James J. Gosling, Economics, Politics, and American Public Policy 64 (2008) (noting Congress's choices in budgetary process represent an amalgam of compromises and accommodations that have presidential initiatives as their starting point).
262. See Erwin Chemerinsky, The Conservative Assault on the Constitution 77 (2010) (Article I of the Constitution gives Congress the power to tax and spend and this always has been regarded as a quintessential legislative power.).
263. The Federalist No. 33, at 159 (Alexander Hamilton) (George W. Carey & James McClellan eds., 2001) (describing power to tax as the most important of the authorities proposed to be conferred upon the Union).
264. U.S. Const. art. I, § 7, cl. 1.
265. Id. amend. V.
266. Id. art. I, § 9, cl. 3.
267. In the next section, we shall have more to say about whether the president or other government official must always choose a constitutional option, if available, even if the only constitutional options are catastrophic. For now, readers who think that the president should simply refuse to choose should imagine a variant on the hypothetical example in which the madman informs the president that if the president refuses to choose either option, the madman-who is, among his other talents, an excellent mimicwill impersonate the president and order both the violation of the rights of the madman's ex-wife and the nuclear strike on Tehran. Thus, in this modified example, failure to choose itself leads to unconstitutional actions.
268. U.S. Const. art. I, § 8, cl. 11.
269. See Ronald Dworkin, Taking Rights Seriously, at xi-xv, 367 (1977) (describing political rights as trumps that exist when a collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or to do, or not a sufficient justification for imposing some loss or injury upon them).
270. See Ronald Dworkin, A Matter of Principle 370 (1985) (developing equalitybased theory in which certain rights should be accepted as trumps over utility, if utility is accepted... as the proper background justification).
271. For this reason, Professor Schauer has aptly stated that rights are better understood as shields rather than trumps.
272. See Frederick Schauer, A Comment on the Structure of Rights, 27 Ga. L. Rev. 415, 429-30 (1993) (arguing rights protect against certain low justification... efforts to restrict the activities that the rights are rights to, but do not protect against high justification... efforts to restrict those activities).
273. See INS v. Chadha, 462 U.S. 919, 959 (1983) (holding congressional veto unconstitutional).
274. See, e.g., Hill v. Colorado, 530 U.S. 703, 725-26 (2000) (upholding as constitutional Colorado criminal statute prohibiting individuals from knowingly approaching within eight feet of another person near health care facilities without that person's consent, because it served significant government interests and was narrowly tailored toward those interests).
275. Clinton v. City of New York, 524 U.S. 417 (1998).
276. Cf. Ricci v. DeStefano, 129 S. Ct. 2658, 2677, 2681 (2009) (stating compliance with Title VII could be compelling interest justifying presumptively impermissible raceconscious public employment measures).
277. See generally Miller v. California, 413 U.S. 15, 24-25 (1973) (discussing standard for identifying obscenity); Roth v. United States, 354 U.S. 476, 489 (1957) (same).
278. See, e.g., Kentucky v. King, 131 S. Ct. 1849, 1857-58 (2011) (discussing exigent circumstances exception to general requirement that warrant be obtained prior to search).
279. Id. at 1858-60.
280. See, e.g., Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2668 (2011) (overturning Vermont law prohibiting pharmacies and other entities from selling prescriber-identifying information without prescriber's consent on grounds that law was not narrowly tailored to compelling state interests in improved public health and reduced healthcare costs).
281. See Neb. Press Ass'n v. Stuart, 427 U.S. 539-561 (1976) (The authors of the Bill of Rights did not undertake to assign priorities as between First Amendment and Sixth Amendment rights, ranking one as superior to the other.).
282. This scenario is not very different from what President Nixon ordered with respect to Daniel Ellsberg, except of course that no one was holding a gun to Nixon's head at the time.
283. See Egil Krogh, The Break-In That History Forgot, N.Y. Times, June 30, 2007, at A17.
284. Auth. To Use Military Force in Libya, 35 Op. O.L.C. (Apr. 1, 2011) (release at 1), available at http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf (on file with the Columbia Law Review) (We concluded that the President had the constitutional authority to direct the use of force in Libya We also advised that prior congressional approval was not constitutionally required to use military force in the limited operations under consideration.).
285. This Article assumes for purposes of this hypothetical example that the gun-wielding madman threatens the president before the Gadhafi regime has been displaced.
286. Our examples are purely illustrative. Thus, we invite readers who reach other conclusions with respect to our scenarios to imagine their own scenarios in which the answer to the question whether one or another constitutional provision prevails in a conflict changes based on the context.
287. See, e.g., Crowell v. Benson, 285 U.S. 22, 62 (1932) (When the validity of an act of the Congress is... in question... even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.).
288. See, e.g., United States v. Stevens, 130 S. Ct. 1577, 1591-92 (2010) (refusing to rewrite statute for doing so would constitute a 'serious invasion of the legislative domain,' and sharply diminish Congress' 'incentive to draft a narrowly tailored law in the first place.' (citations omitted) (quoting United States v. Treasury Emps. Union, 513 U.S. 454, 479 n.26 (1995); Osborne v. Ohio, 495 U.S. 103, 121 (1990))).
289. Reno v. ACLU, 521 U.S. 844, 884-85 (1997) (This Court 'will not rewrite a... law to conform it to constitutional requirements.' (omission in original) (quoting Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 397 (1988))).
290. See, e.g., Larry Alexander, Deontology at the Threshold, 37 San Diego L. Rev. 893, 894 (2000) [hereinafter Alexander, Deontology] (There are some acts that are morally wrong despite producing a net positive balance of consequences; but if the positive balance of consequences becomes sufficiently great ... then one is morally permitted, and perhaps required, to engage in those acts that are otherwise morally prohibited.).
291. Michael S. Moore, Torture and the Balance of Evils, 23 Isr. L. Rev. 280, 327-32 (1989) (articulating theory and structure of threshold deontology). In drawing an analogy to threshold deontology, this Article expresses no position on whether threshold deontology, straight utilitarianism, straight deontology, or some other moral view (such as virtue ethics) is generally correct.
292. Compare Alexander, Deontology, supra note 197, at 898-901 ([T]he most plausible account of a deontological threshold would consider both the number of persons at which the interests at stake justify overriding negative duties ... and the number of persons at which the interests at stake justify imposing affirmative duties), with Moore, supra note 197, at 314-15 (The moral answer ... must be ... [y]ou cannot torture or kill the innocent, even to achieve what are admittedly good consequences).
293. Balkin, J., Ways to Bypass, supra note 22.
294. See supra note 94 and accompanying text.
295. See Craig R. Ducat, Constitutional Interpretation 76-80 (9th ed. 2009) (discussing constitutional absolutism and the roles rules and principles play in determining constitutionality of laws).
296. Just a few years before his all the laws but one speech, Abraham Lincoln appeared to endorse absolutism, albeit in a context that did not involve a threat to the Union.
297. See Abraham Lincoln, Address at Cooper Institute, New York City (Feb. 27, 1860).
298. Collected Works of Lincoln, supra note 156, at 522-531 (No one who has sworn to support the Constitution, can conscientiously vote for what he understands to be an unconstitutional measure, however expedient he may think it).
299. For a useful exposition of moral pluralism within the virtue ethics tradition traceable to Aristotle.
300. see Gregory S. Alexander & Eduardo M. Peñalver, An Introduction to Property Theory 97-101 (2012) (exploring how moral pluralist theories respond to problem of value incommensurability).
301. Worse yet, the government may deliberately aggravate situations in order to justify the use of torture.
302. See Alexander, G. S., Deontology, supra note 197, at 902-04 (describing possibility of intentionally increasing danger in order to reach deontological threshold).
303. In the torture context, Oren Gross has argued that an absolute prohibition is optimal because it will lead to just the right amount of torture-almost none. Oren Gross, Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience, 88 Minn. L. Rev. 1481, 1486-87, 1501-11 (2004).
304. For similar approaches and critiques, see Richard A. Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency 157-58 (2006) (noting law of necessity should be understood not as law but as the trumping of law by necessity).
305. Benjamin A. Kleinerman, 9/11, the Liberty/Security Balance, and the Separation of Powers, Crim. Just. Ethics, Winter/Spring 2007, at 59, 62 (reviewing Posner, supra).
306. See, e.g., Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting) (There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.).
307. Courts and commentators frequently voice this sentiment in the national security context.
308. See, e.g., Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963) ([W]hile the Constitution protects against invasions of individual rights, it is not a suicide pact.).
309. Peter Brandon Bayer, Sacrifice and Sacred Honor: Why the Constitution Is a Suicide Pact, 20 Wm. & Mary Bill Rts. J. 287-289 (2011) (discussing self-defeating characteristics of true constitution).
310. see also David Corn, The Suicide Pact Mystery: Who Coined the Phrase? Justice Goldberg or Justice Jackson?, Slate (Jan. 4, 2002, 11:04 AM), http://www.slate.com/articles/news_and_politics/politics/2002/01/the_suicide_pact_mystery.html (on file with the Columbia Law Review) (attributing coining of phrase to Justice Jackson).
311. 427 U.S. 539 (1976).
312. Id. at 561.
313. Id.
314. Id. at 562, 570.
315. Id. at 567-69.
316. Id. at 570.
317. A federal appeals court once announced that the Fifth Amendment right to due process would conflict with, and should prevail over, the Seventh Amendment right to a civil jury trial if a case were too complex and technical for laypersons to resolve as jurors. In re Japanese Elec. Prods. Antitrust Litig., 631 F.2d 1069, 1084-86 (3d Cir. 1980).
318. That court cited Nebraska Press Ass'n for the proposition that when two constitutional requirements conflict, the court should balance the constitutionally protected interests to produce an accommodation.
319. Id. at 1084.
320. However, other appeals courts have rejected the notion that the jury trial right must yield because of complexity.
321. See, e.g., SRI Int'l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1128-30 (Fed. Cir. 1985) (Elbowing to one side the Seventh Amendment, and the compelling social and democratic (much less constitutional) bases for its existence, would be at best an unseemly judicial exercise.).
322. In re U.S. Fin. Sec. Litig., 609 F.2d 411, 432 (9th Cir. 1979) (holding there is no complexity exception to the Seventh Amendment right to jury trial in civil cases).
323. See, e.g., Oregon v. Elstad, 470 U.S. 298, 306-07 (1985) (explaining interplay between Fifth Amendment, Miranda warnings, and remedy of exclusion for Miranda violations).
324. Mapp v. Ohio, 367 U.S. 643, 649-50 (1961) (holding evidence obtained in violation of Fourth Amendment may not be used in state criminal prosecutions).
325. See United States v. Leon, 468 U.S. 897, 907 n.6 (1984) (discussing studies on effect of exclusionary rule on disposition of felony arrests).
326. See, e.g., Jennifer E. Laurin, Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence, 111 Colum. L. Rev. 670, 691-94 (2011) (discussing development of cost-benefit analysis for exclusionary rule and cases in which Supreme Court has found application of rule not cost-justified).
327. Potter Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum. L. Rev. 1365, 1399-1404 (1983) (arguing against good faith exception to exclusionary rule within deterrence framework).
328. See Hudson v. Michigan, 547 U.S. 586, 591-92 (2006) (noting modern exclusionary rule applies narrowly, only to cases with deterrence value).
329. Peter Arenella, Rethinking the Functions of Criminal Procedure: The Warren and Burger Courts' Competing Ideologies, 72 Geo. L.J. 185, 192-93, 236-38 (1983) (The Court has focused primarily on whether the future deterrent benefits secured by applying the exclusionary rule outweigh its present tangible costs to reliable guilt-determination.).
330. Thomas Y. Davies, The Supreme Court Giveth and the Supreme Court Taketh Away: The Century of Fourth Amendment Search and Seizure Doctrine, 100 J. Crim. L. & Criminology 933, 990-91, 997-1000, 1006-10 (2010) (tracing Supreme Court's embrace and affirmance of deterrence rationale).
331. Cf. Stewart, supra note 217, at 1404 (I have suggested that the exclusionary rule is a constitutionally mandated remedy, necessary to enforce the fourth and fourteenth amendments, and that proposals to modify the rule must preserve an effective remedy.).
332. See, e.g., John P. Gross, Dangerous Criminals, the Search for the Truth and Effective Law Enforcement: How the Supreme Court Overestimates the Social Costs of the Exclusionary Rule, 51 Santa Clara L. Rev. 545, 570-71 (2011) (arguing Supreme Court overestimates costs of exclusionary rule, including danger from freeing guilty defendants).
333. See supra notes 209-214 and accompanying text.
334. See Jamal Greene, The Rule of Law as a Law of Standards, 99 Geo. L.J. 1289-1291 (2011) ([M]any of the world's most respected constitutional courts, including the courts of Canada, Germany, Israel, India, and South Africa, in addition to the European Court of Human Rights and the European Court of Justice, incorporate balancing into forms of proportionality analysis.).
335. For a careful exposition of the stages of balancing as employed in modern rights jurisprudence by one of the world's most important jurists of the last quarter century.
336. see generally Aharon Barak, Proportionality: Constitutional Rights and Their Limitations (2012).
337. Locke v. Davey, 540 U.S. 712, 718 (2004) (quoting Walz v. Tax Comm'n, 397 U.S. 664, 669 (1970)).
338. See, e.g., I.A. v. Turkey, 2005-VIII Eur. Ct. H.R. 249, 258 (holding Turkish court that fined author of book offensive to Islam did not violate European Convention on Human Rights due to pressing social need).
339. Michael Walzer, Political Action: The Problem of Dirty Hands, in War and Moral Responsibility 62 (Marshall Cohen et al. eds., 1974).
340. William Styron, Sophie's Choice (Modern Library 1998) (1979).
341. As Gregory Alexander and Eduardo Peñalver note, people who think that all normative decisions can be reduced to a single currency (such as aggregate utility) have difficulty accounting for the notion that moral choice sometimes involves the need to act even in the face of irreconcilable conflict among values.
342. Alexander L., & Peñalver, E. M., supra note 203, at 99. One could analogize the moral monists that Alexander and Peñalver critique to those constitutional interpreters who favor suppressing conflict among constitutional clauses and doctrines.
343. See Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, 112 Yale L.J. 1011, 1105 (2003) (invoking Walzer and Max Weber).
344. Clinton v. City of New York is straightforward precedent. The City of New York successfully challenged spending cuts that President Clinton made under the Line Item Veto Act. 524 U.S. 417 (1998).
345. 26 U.S.C. § 7421(a) (2006); cf. Flora v. United States, 357 U.S. 63, 75 (1958) (discussing settled principle of pay first and litigate later).
346. Such a lawsuit might fall within the statutorily authorized original jurisdiction of the federal courts.
347. see Smith v. Kan. City Title & Trust Co., 255 U.S. 180, 199 (1921) (upholding statutory federal question jurisdiction where state law restricted investments to legal securities only), but even if not, the issue could reach the United States Supreme Court in a case filed originally in state court.
348. See supra text accompanying notes 80-83.
349. See Summers v. Earth Island Inst., 555 U.S. 488, 492-95 (2009) (repeatedly reciting requirement that plaintiff seeking injunctive relief against government must allege imminent concrete injury).
350. See Mistretta v. United States, 488 U.S. 361, 382 (1989) ([C]oncern of encroachment and aggrandizement... has animated our separation-of-powers jurisprudence).
351. See supra text accompanying notes 140-143.
352. See supra text accompanying notes 144-145. We acknowledge that there is a sense in which issuing Presidential bonds would be stickier than either unilaterally raising taxes or cutting spending.
353. The bonds (if deemed valid) would create a property interest, which Congress would be constitutionally obligated to respect. Cf. supra text accompanying note 69. By contrast, taxes raised by the president could be subsequently cut by Congress and spending cut by the president could be restored by Congress without violating the Constitution. Thus, when we say that Congress can undo a president's unilateral borrowing, we do not mean that Congress could default on outstanding bonds. We are measuring stickiness in a practical political sense rather than a strictly legal sense.
354. See Eskridge W. N., & Ferejohn, J., supra note 144, at 528-33 (modeling interactions between president and Congress as iterative game).