Battle for the CFL Championship

by Andrew Rudalevige on September 16, 2013 · 2 comments

in Law,Legislative Politics,Presidency

While the impending move to the Post will certainly improve The Monkey Cage’s sports coverage (go Sox!), the headline here is, naturally, a bait and switch. It does not refer to our Canadian footballing friends but to the venerable Constitution Fantasy League – where contestants receive points for the boldness of their own Constitutional fantasy (with a substantial bonus if they put it into practice and achieve what scholar Richard Pious called a “frontlash.”)

Those of you with Barack Obama on your CFL roster have been nervous ever since he went to Congress regarding the use of force in Syria and even noted that “it’s important for us to get out of the habit of just saying, well, we’ll let the President kind of stretch the boundaries of his authority as far as he can.”  It appeared that Rep. (and Pres.-wanna-be) Peter King was going to stretch his lead in this fall’s standings.

But Obama made a bold bid for a comeback in Sunday’s matchups, claiming that the House failing to exercise its legislative powers “changes the constitutional structure of this government entirely.”

The context was an interview with ABC’s George Stephanopoulos which pivoted from Syria to the upcoming budget battle(s) – remember that fiscal year 2014 begins on October 1, and Congress has once again failed miserably to pass anything like a budget for the new year, having failed miserably to pass one for the present fiscal year now almost complete or most recent fiscal years for that matter. Obama was asked about the statutory debt limit, and the House Republicans’ threat to link an increased debt limit to Democratic concessions over spending levels overall and the roll-out of Obamacare. Obama said “ I will not negotiate…on the debt ceiling,” and continued:

“If we continue to set a precedent in which a president, any president, a Republican president– a Democratic president– where the opposing party controls the House of Representatives– if– if that president is in a situation in which each time the United States is called upon to pay its bills– the other party can simply sit there and say, ‘Well, we’re not gonna put– pay the bills unless you give us what our– what we want,’ that changes the constitutional structure of this government entirely.”

The problem is that the “power of the purse” is one of Congress’s crucial and inalienable powers. James Madison noted in Federalist 58 that it represents “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”  Even scholars such as past CFL champion John Yoo hold that the spending power is wholly legislative.

Now, defaulting on the full faith and credit of the United States is an idiotic idea. I can’t promote it as a “just and salutary measure.” But there are many members of Congress who think that reducing overall federal spending, and/or repealing the Affordable Care Act, are exactly that. The legislative power generally, and the power of the purse specifically, provides Congress leverage to make those kinds of bargains, or try to.  And using constitutional leverage does not change the constitutional structure of this government, even in part.

 

PS - One could argue that the debt ceiling is a separate process from the appropriations process (which is, of course, part of the problem, since debt issuance is tied to spending already passed into law.)  But both provide statutory guidance over the level of government spending, so I find it hard to separate out the debt limit from the power of the purse. Either way, how is one chamber failing to legislate something that changes the system? Bad policy outcomes – even really bad policy outcomes - reflect the challenges of operating within a separated system of checks and balances, rather than changing that system.

PPS - A reminder of a different argument about presidential power vis-à-vis the debt limit, from 2011 – I suspect we’ll be seeing this debate resurrected soon.

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