Our Lawless President?

Is President Obama completely heedless about straining all the constitutional joints of our political system, or is it deliberate? He’s clearly pushing the constitutional envelope more aggressively than any president since FDR, so it may be deliberate since he admires and wishes to emulate the example of FDR. While his new-New Deal Keynesianism may have flopped, his deformation of our constitutional order may be heading for multiple crises in the next few weeks or months. Willy-nilly Obama is forcing the judiciary to wade into a number of controversies where it would surely rather not go, and Obama is probably reckoning that the Supreme Court will decide, as it did with FDR in 1937, to say “no mas!”

First, Obama stretches the limits of the already largely deformed Commerce Clause with the individual mandate for health care, with the added twist that the act did not include the standard severability clause, which means that the Court faces the added difficulty of having to decide whether to strike down the entire act if it finds the individual mandate to be unconstitutional. This is a high stakes game of chicken, as noted here a couple days ago. I’m sure the Justices are not looking forward to the eventual Obamacare case, and wish Congress would dispose of its own mistake. (I wouldn’t be surprised to see the Court allow a longer than usual oral argument over the case when it comes.)

Second, Obama has chosen to flout the War Powers Act with respect to the “kinetic activity” in Libya. The War Powers Act may be constitutionally dubious (I think so), but it is nevertheless the law of the land, and should be obeyed or directly challenged—not ignored or rendered inoperable by fancy faculty room semantics. (But while we’re on this subject, let’s note that the House Republicans have demonstrated why Congress isn’t fit to run military or foreign policy, and why the Founders were right to tilt this power toward the executive. The House voted to “disapprove” of the Libyan expedition, but refused to cut off funds for it—a great example of taking responsibility. Not.) Still, this is another issue the Supreme Court is likely very reluctant to settle, seeing it more likely a “political question” that the two other branches need to work out between themselves.

The third foray into constitutional peril concerns the debt ceiling limit currently in contention in Washington. With signs that Republicans are not going to roll over for half-measures, liberals are floating a trial balloon that the debt ceiling vote may be unnecessary because the ceiling itself is unconstitutional. The New Republic is all over this story line, with at least three separate pieces over the last few days outlining the case. See here, and here, and here, for starters.

There are several interesting wrinkles to this theme. First, it rests on a novel interpretation of the clause of the 14th Amendment that reads, “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.” Sen. Chris Coons of Delaware, among others, says this passage implies that the U.S. cannot default on its sovereign debt obligations. Perhaps this is true of existing debt obligations, but does this mean the Treasury can take on new debt obligations without being “authorized by law,” as the text of the Amendment reads?

Second, can the Executive branch declare on this question alone? Maybe, but this will be the very kind of claim that normally sends liberals howling at the moon (see: Schlesinger, Arthur: The Imperial Presidency) when a Republican president tries something like it.

Lastly, the largest hypocrisy of this idea is the notion that no one will have standing to bring a lawsuit against the President if he indeed decides to ignore the debt ceiling. The law professors who argue that Congress would lack standing to sue, and that no individual citizen could sue, because both lack a claim “direct harm,” may be narrowly correct. And I’m sure the Supreme Court would also hate this case. But I note that liberals are usually in favor of the most expansive view of standing, so that victim/claimants can get their day in court. Few things get liberals more upset than when the Supreme Court tosses out a suit for lack of standing. And the idea of “cumulative harm” at the heart of the expansive standing rules for environmental lawsuits would seem to apply just as well here: if the U.S. Treasury ignores the debt ceiling and goes on debasing the currency and eroding the economic future of the nation, it will harm’s every citizens financial future.

Bottom line: the liberals arguing that Obama can ignore the debt ceiling are practicing result-oriented jurisprudence again. I know, not exactly a news flash. But still. . .