Thursday, July 7, 2011

What's Up With the Deficit Talks?

I have no idea. Neither do you. Neither does, most likely, anyone else who is talking about it right now. There's even an excellent chance that the participants in the discussions don't know.

There simply is no way to tell, while negotiations continue, what is posturing and what is real, what is a bluff and what is someone's bottom line. Of course, advocates shouldn't just sit back and wait to see what happens; they should, well, be advocating, as best they can. So if something is floated in the news, it usually makes sense for advocates to treat it as a trial balloon -- and if they don't like it, shoot it down as strongly as they can. But that doesn't tell us anything about whether the original report was something that's a done deal, something that was in fact a real trial balloon, or even something that reporters just got wrong.

So just remember the basics: at some point, and unless the president invokes the 14th Amendment, the debt limit will be raised, and that will require a majority in the House and at least a majority, and most likely 60 votes, in the Senate, along with the president's signature. At some point, there will be appropriations passed, again by both Houses of Congress and the president's signature, for FY 2012 spending. What will accompany those things in order for them to get those votes -- we don't know. But any deal you hear about will need to get them, and so if it seems that the supposed deal is unlikely to get, say, to 218 in the House, it's probably not going to happen.


  1. The 14th Amendment refers to public debt "authorized by law". So invoking it brings us back to the laws on the debt ceiling and on appropriations: I don't see how it helps.

    Meanwhile, two responses to your previous questions/comments on this:

    Q: Who has standing to sue if Geithner issues debt above the limit?
    A: Holders of long-term bonds could sue the government for violating the statements it made while marketing the bonds, which included statements about the debt ceiling.

    Q: How do we move forward?
    A: Geithner should announce how he plans to prioritize the first month of payments.

  2. The debt ceiling talks are pure speculation. If the debt ceiling isn't raised there will drastic least that's what the politicians say. As always, they use fear tactics as a "gun to the American people's head" if I can quote Obama.

  3. "Nobody knows anything." (William Goldman)

    As Hollywood, so Washington -- as is so often the case.

  4. @across:
    I'm not saying this is an answer, becuase I'm way beyond my depth on the law on this front, but it would seem to me that the refuge for Obama in the 14th Amendment is exactly that "authorized by law" phrase. Any authorization/appropriations bill is a law. And, despite Congress saying earlier that the debt ceiling would be X, I think the legal argument for the "ignore the limit" side goes something like: Congress cannot bind the hands of Congress, except through changes to the rules of the chambers. Those are also subject to change by majority vote, since each chamber can make its own rules, they can also decide how those rules are interpreted. Which would mean that anything that passes with a majority vote (and gets signed and passes constitutional muster) is law. So, Congress passed a debt ceiling. Since then, Congress has spent money. Therefore, the only real debt ceiling is what Congress has authorized to be spent.

    Now, I'm not sure I believe the argument; I really don't know enough law. But, it seems to me to be a plausible enough argument. It might not be correct, but it seems strong enough that smarter minds than my own could engage the debate over whether Congress can actually pass a binding debt ceiling.

  5. @matt: I follow you from "any appropriations bill is a law" onward. But where does that argument use the 14th amendment?

  6. Looks like with all the blather the GOP leveled about "fiscal uncertainty" last winter these same said politicians would find the uncertainty they've created similarly disastrous...

  7. @ATS: I'd say that since it says any debt "authorized by law", that since the appropriations are made by laws, that the 14th says they have to be covered.

    The argument goes that the laws spending the money come after the laws setting limits, so they supercede them. It makes sense to me, but then, so does the argument that Congress can choose to bind its own hands by passing a law that says no more debt than X.

  8. @Matt and @JB: FYI, Jack Balkin has posted again on this topic: If Obama raises debt above the debt limit, that violates the law, and is an impeachable offense. However, circumstances could force Obama do it, and Congress could authorize it retroactively.

  9. Actually guys, I'm pretty sure the 14th amendment would have given presidential power to raise the ceiling, without congressional approval. This because the debt was amassed legally and defaulting on it would not have been legal. Despite what your right wing lunatic fringe has been saying.


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