ON HAVING JUST DODGED A "BULLET"
Tuesday, August 2, 2011
by Richard E. Berg-Andersson
With the United States of America on the verge of reaching its debt ceiling (as set by law)- on or about Tuesday 2 August 2011, per the best calculations of the U.S. Treasury Department (though there were- likely- a couple days or so more of "wiggle room" as new revenue offsetting debits might have been factored in)- the Federal House of Representatives voted (on Monday 1 August), 269-161, to increase the debt ceiling incrementally (based on concomitant cuts in Federal spending) over much of the next two years (thereby placing the next big battle over raising the debt ceiling well beyond 6 November 2012, the date of the next Federal- including, of course, a Presidential- Election). The next day (Tuesday 2 August), the United States Senate passed the same legislation by a vote of 74-26 and President Barack Obama signed it into law shortly thereafter.
First: What Did Not Have to Happen
There are reports that, had a deal with Congressional leaders of both Major Parties regarding a debt ceiling increase not been reached, President Obama would have ordered the Secretary of the Treasury to continue paying out on national debt(s) already owed on the grounds that Section 4 of the 14th Amendment- already discussed in my Commentary of this past 13 July- constitutionally requires him to do so once the debt ceiling has been reached. Even before the new debt deal had been brokered, many- among them, Republican presidential contender and Congresswoman Michelle Bachmann [R-Minnesota] (who voted against said debt deal, by the way)- were arguing that, should the President do just that, he would be liable to impeachment (thus, or so one can fairly argue, Mrs. Bachmann has also, effectively, been in favor of possible U.S. default! [then again, to be most fair, both of the Democratic United States Senators from my own State of New Jersey also, in essence, voted in favor of said default-- despite the huge factor the financial sector of the American economy plays within a State a large portion of which is within the metropolitan area of what is, after all, the financial capital of the country-- but, again to be most fair, unlike Congresswoman Bachmann, neither Senators Lautenberg nor Menendez would have likely been all that upset had the President so invoked the 14th Amendment and, besides, neither Senator from New Jersey is out there on the hustings shilling for the Highest Office in the Land!]).
But while, yes, a President defying a debt ceiling set by Congress might well be an impeachable offense, a President not so defying said Debt Ceiling- at least insofar as making sure the Nation could still pay out on debts it has already incurred- would have been liable to impeachment! Sounds contradictory? That's as may be... but let us take a good, however brief, look at the origins of the very provision of the Constitution of the United States that allows for impeachment of Federal executive and judicial officers- including the President of the United States- in the first place:
It is Article II, Section 4 of the Federal Constitution which reads as follows...
The President, Vice President and all civil officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Treason and Bribery present no real problems, as these terms are generally well understood; thus, the principal issue, as regards Impeachment, has always been those "high Crimes and Misdemeanors"-- and, Impeachment being as much a political process as a legal one, that concept remains rather malleable! But what did the Framers seem to mean by it?
In the so-called "Virginia Plan"- which, if only by default, became the working document on which what would become the U.S. Constitution would be drafted- the Judiciary was to have authority over "impeachments of any national officer" (please keep in mind that the concept of "national officer" was here rather nondescript: the Virginia Plan also referred to a "national legislature" that had yet to coalesce into a bicameral Congress with one of its chambers representing States, as opposed to the People and a "national executive" that still might well have been plural [say, an Executive Committee or even something along the lines of a Cabinet (in the British sense of the term) headed by some equivalent of a Prime Minister]: this idea of an 'executive' had not yet become the office of President of the United States that the new Constitution would, soon enough, frame; even the "judiciary" so determining such impeachments was not yet sketched out, by any means!).
On 2 June 1787- but a mere week after the Convention in Philadelphia had first convened with a quorum to do business- John Dickinson of Delaware moved that "the executive be removable by the national legislature" upon petition by "a majority of the legislatures of individual states". Note two important things here, dear reader: that Dickinson was, for the first time, singling out the executive (unmooring the executive from those "national officers" [judges? agents of the executive not part of it per se?] subject to "impeachments" under the Virginia Plan) and that Dickinson's idea was a kind of "federalized" version of what would later come to be called Parliamentary Democracy (in that, again, the "national executive" was, at the time, still potentially multi-person in nature: here, what Parliamentary systems call "the Government" would have been responsible to what became Congress... but only if most States- through actions of their own legislatures- asked that this "Government" be so!)... in the course of debate on the Convention floor that day, others suggested the executive be removable by the national legislature alone (which would have resulted in something even more like modern Parliamentary systems of governance!)
Both options presented on 2 June were, ultimately, defeated and the only thing that came of this first debate over how to hold the still-vague "national executive" to account was an agreement that said executive be removable "on impeachment and conviction of malpractice or neglect of duty" (language that survived in the Resolutions reported out by Committee of the Whole on 13 June [the same Resolutions that emphatically declared that the "national executive"- an office still unnamed as yet- "consist of a single person": from then on, a single executive officer- that which would, in the end, be called "President of the United States"- was definitively contemplated).
Despite this agreement that the (now single person serving as) national executive be so "impeached" (and, where necessary, "convicted" and, thereby, "removed"), the New Jersey Plan (offered as an alternative to the Virginia Plan and any subsequent changes thereto by Resolution in Convention by the smaller States) offered a variant on Dickinson's original idea-- that the executive be "removable by Congress on application by a majority of the executives of the several States" (again, something along the lines of "federalized" Parliamentary Democracy). This was ignored (largely because it so conflicted with the Resolutions already agreed to) and- thus, come 20 July (when the Convention once again revisited the issue of impeaching- and removing upon conviction- the now-single executive)- the issue turned on whether it was even advisable to be able to impeach the executive at all! Many delegates (evidently already contemplating the notion of "President as elected King"- especially as they also began to seriously contemplate that the presiding officer of the Convention itself, one George Washington of Virginia, might himself be the best man to serve as first such President) suggested that only "civil officers" (that is: agents of the executive) be subject to impeachment and removal thereby. In the end, though, the language of 13 June survived to be referred to the Committee on Detail.
That Committee made a most important change: in the place of "malpractice or neglect of duty", they- instead- used the terms "treason, bribery or corruption" (the Committee on Detail also, interestingly, would have had the President alone tried- upon impeachment by the House of Representatives- by the Supreme Court!: when this particular detail was discussed on 27 August, Gouvernour Morris of Pennsylvania moved to postpone discussion of the whole impeachment issue on grounds that the High Court would be an improper forum [Morris apparently still had an idea that the Senate might be, in effect, something of a "Privy Council" (representing the sovereign States) advising the President (the concept of a 'Cabinet' consisting of the heads of executive Departments- which does not even appear in the original text of the Constitution, by the way,- was still in the [albeit very near] future) with the Chief Justice of the United States as the "first officer" of such Senate-as-Council]-- as things turned out, impeachment of the President was not ever revisited before the whole issue got dumped into the lap of the Committee on Unfinished Portions).
The Committee on Unfinished Portions ended up dropping "corruption", thus the President was to be liable to removal from office upon impeachment (by the House of Representatives) and conviction (now by the Senate) of "treason and bribery" only. This seemed rather unsatisfactory and- on 8 September- George Mason of Virginia suggested adding "or maladministration" as grounds for impeachment of the President; his Virginia colleague James Madison objected on grounds that "maladministration" was far too vague (Madison himself contemplated "incapacity, negligence and perfidy"- as well as "wanton removal of meritorious officers"- as grounds for impeachment of the President) and, so, Mason then moved the now-famous phrase "high crimes and misdemeanors" (the latter here not meaning "Misdemeanor" as a class of Crime below that of "Felony" but, rather, misdeeds by the President- short of those defined by Criminal Law- yet "high" enough to suggest that the President was neglecting his constitutional duties) and this was, ultimately, adopted and appears in the final draft of the original text of the Constitution of the United States reported out by the Convention to the States for ratification (as well as to the Confederation Congress which had originally authorized the Convention to "revise the Articles of Confederation") on 17 September 1787.
The whole point of the above summary of this particular aspect of American Constitutional History is to show that the Framers of the Constitution, once they had created the office of President of the United States, were greatly concerned with- as much as anything else (that is: treason or bribery, specifically named in the provision)- such things as "maladministration", "negligence" and "neglect of duty". In this regard, it is telling that- on 27 August 1787 (the very same day that Gouvernour Morris successfully argued that debate on impeachment be postponed [if only because of concerns as to who should try a President already impeached by the House])- both Mason and Madison (one seconding the other) successfully moved that the words "preserve, protect, and defend, the Constitution of the United States" be added to a Presidential Oath of Office that, up till then, only required that he "faithfully execute the Office of President of the United States": therefore, "maladministration" and "negligence" (in the very sense of 'neglect of duty') were both seen as part and parcel of a failure to so "preserve, protect and defend the Constitution of the United States"!
Back to the present day (mid-2011) now:
As I myself have, so often, pointed out in my previous writings for this very website: the President of the United States is the only Federal officer who takes an oath to so "preserve, protect and defend" the Constitution (all other Federal officers- from Vice President of the United States down to the newest recruit in the American military- merely take an oath to "support and defend" the fundamental Federal charter).
So here's the question of moment: just how would the President be "preserv[ing] and protect[ing]" the Constitution by allowing the United States to default- or, put another way, the President not making certain that "the validity of the public debt of the United States, authorized by Law" is beyond "question"? Clearly, a President not so acting in just such a situation would be the very essence of "maladministration" or "neglect of duty"- the ultimate "high Misdemeanor" (where not even "high Crime"!) as the Framers of the document themselves would have understood it.
Thus: those reading this who might decry such an executive invocation of Section 4 of the 14th Amendment are, in effect, arguing that a President should be impeachable were he to do so, even while- as I have demonstrated herein- he would also be impeachable should he not do so: as a result, a President in such a situation would be "damned if he did, damned if he didn't".
Is a President of the United States free, then, to so defy a congressionally-mandated debt ceiling? Well, to quote that great political philosopher, songwriter Kris Kristofferson [;-)]: Freedom's just another word for "Nothing left to lose" ;-)
Next: Winners and Losers
So, and more to the point of a website largely dedicated to looking at the political landscape going into those 2012 Federal Elections. who might have actually "won" this whole recent debt ceiling fracas? In truth, did any of the factions, wings, Parties and/or personalities involved in all this really "win"?
For the short term- and it is only for the short term- the Republican Party as an institution "won": because the GOP congressional leadership (which, in the end, mirrors the hierarchy of the national GOP "out there") got much of what it sought in the debt deal that finally passed. There will be significant spending cuts- to which raising the debt ceiling is, however loosely, tied- and yet, at the same time, no significant tax increases. Since the Grand Old Party has long presented itself, in Federal (as well as many State) election campaigns, as the Party of just that premise- "cut spending, no new taxes"- it immediately seems, at least on the surface, the proverbial "win-win" for the Republican Party US.
But look more carefully at the vote on this debt deal on the floor of the House (the one chamber of Congress that more represents the People than it does the States) and one realizes just how much the debt ceiling battle of the past few months was an intra-Party, as opposed to an inter-Party, fight: for more than 1/4 of the GOP members of the House (more than half of these being among the hardest-core so-called "Tea Party" members)- 66 Republicans in all (out of 240 present and voting)- voted against the bill (and, by extension, against their own leadership); meanwhile, some 1/3 of those Republicans voting "Yea" appear to have done so most reluctantly (the rhetorical balm that seeks to soothe these being a notion that "the culture of Washington has changed" from talking about 'what can we spend?' to 'what can we cut?'-- a concept the truth of which very much remains yet to be seen!)
All in all, roughly half the Republicans in the U.S. House of Representatives appear to be not all that happy with this debt deal and such a divide has clear longer-term ramifications for a Party not in the White House and, in addition, on the verge of engaging in rather pitched battle over just whom that Party might want to try and put in the White House a year from now (keep in mind that we are now but a little over a year from the next Republican National Convention which will so nominate said GOP standard-bearer!)
True enough, the Democrats are split as well (indeed, the vote among Democrats in the House on this debt deal was right down the middle: 95-95!) but, with a Democrat eligible for re-election currently occupying the Presidency, those Democrats most vehemently opposed to the deal (and, indeed, there was more opposition- in the lower chamber of Congress- to this deal from the Left than from the Right) really have nowhere else to go right now as regards 2012 (for here's the "real deal": absent something altogether extraordinary that cannot at all be foreseen as I type this, only one of two possibilities exist as to just who might be taking the Presidential Oath of Office come Noon Eastern Standard Time on 20 January 2013- either a Barack Hussein Obama embarking on his second term in office or whomever the Republicans formally nominate at their Convention towards the end of next August: as any presidential candidate who might emerge from the liberal "progressive" wing of the Democratic Party and, however unlikely this seems at present, wrest the next Democratic presidential nomination from the incumbent virtually guarantees that the victor in the 2012 Presidential Election would, in such a case, be a Republican!)
In addition, despite the bitterness of those liberals in Congress as regards just how the debt ceiling has now been raised, the Democrats actually managed to avoid (if only for the time being) massive cuts to Medicare and Social Security and other so-called Federal entitlement programs: this even though, at the same time, those within the progressive wing of the Democratic congressional delegation do feel as if they had just, so recently, been freed from being held hostage while having a gun pointed at their heads!
As for President Obama himself, he takes a short-term "hit" here, for he seemed to be fiddling far too much while the debt ceiling divide between the Parties- and, even more so, between the factions and wings within said Parties- yet burned (though his strategy of refusing to play the "14th Amendment card" which was the subject of the first section of this Commentary seems to have paid off [through his so giving neither Party in Congress an easy "out" should a deal not be reached; despite claims on the Left that Obama's refusal to say, emphatically, "I'll raise the debt ceiling anyway" gave up leverage the Democrats might otherwise have had versus the Republicans as regarded raising revenue as part of this deal, such leverage- in reality- never really ever existed (if only because of that "power of the Purse" the House of Representatives- currently controlled by the GOP- ever has)]).
Longer-term, however, the President comes out having neither actually "won" nor- by the same token- has he really "lost", for he has moved himself- and his Administration- closer to that very political center which a presidential candidate- whether incumbent or no- most needs to win in order to come out victorious in a national election (again, largely through his not having had to play that "14th Amendment card", an action which might otherwise have alienated at least significant portions of that centrist "bell curve"). Thus, in many ways, the political die has now been cast by the White House and it has come up noting that it is the Republicans who will now have to decide whether they are going to nominate a presidential candidate who can well battle Obama for this mainstream middle-of-the-road "bell curve" of the American electorate or, instead, make a mere political statement- via the 2012 GOP nomination- as to just how hard-core well-right of center the GOP might, if only for the time being, most want to be!
In the end, however, the American economy itself "loses" in the short term (for the economy's longer term- as it might affect the American political landscape going into the 2012 General Election campaign beginning in September of next year - will now have to just play itself out over the next 12 months or so and, therefore, very much remains to be seen) as this resolution- which, truth be told, has not really resolved much of anything! (for we Americans so battle again no later than 2013)- of the debt ceiling battle does virtually nothing for the economy (at least immediately). The financial markets- worldwide, as well as domestic- were already jittery as U.S. default potentially loomed and they remain jittery even with the debt deal (such as it is) having been formally codified in American Law; meanwhile, a potential credit rating downgrade for "the world's only remaining Superpower" is not yet completely out of the question as I now type this!
But, more to the point, is the fact that the American economy remains- all in all- altogether stagnant.
Taking the 'Flow of Product' definition of Gross National Product [that is: Consumption (spending on goods and services) + Investment (spending on [re]capitalization of businesses)+ Government spending], the first two factors are virtually moribund and the third has just been done in by the spending cuts inherent in the debt deal itself. The conservative Republican hypothesis is that consumers and investors alike will no longer prefer to so sit on their money if the national debt is reduced, but there is (obviously) no guarantee that this will- in fact- happen (as consumers and investors alike seemingly wait for "someone else" to make the first move); meanwhile, the liberal Democratic hypothesis of increasing the third factor (Government spending) to make up for deficiencies in the first two (Consumption and Investment) has flown out the proverbial "window" (for, even if one were to admit the validity of such an argument, the Republican refusal- in this debt deal- to do anything serious as regards raising government revenue [read "taxes"] kills any such remedy as soon as it is birthed).
The direct effect on the American economy as a whole can be seen when one looks at Gross National Product via 'Cost Approach' [in which it is defined as: Wages, Salaries & other Employee Benefits + Net interest + Rental income + Indirect business taxes+ Corporate profits (before taxes)+ Income to other (unincorporated) business ventures+ Depreciation]... if Unemployment is high, wages and salaries are down (for nobody is paying wages and salaries to those not working), interest (largely tied to the Prime Rate set by the Federal Reserve) is virtually zero (all *I* have to do is look at that whopping 50 cents I made, over this past Quarter, on one of my Certificates of Deposit at my local bank! LOL [if only to keep from crying]), rental income is down (for example: why pay for a large space for one's business when one can fit the now-smaller work force into a smaller space? for that matter: why for a space at all when your own business has already "gone under"?-- meanwhile: how can people out of work and who have already timed out all their Unemployment Benefits at all afford rent on apartments and the like?), business taxes are down (as the Republicans demanded they be as part of this debt deal) and- with little investment, as per the previous paragraph of this piece- what significant corporate profits and other business income is going to be generated (and, going back to the immediately preceding factor, we are not taxing any enterprises which have made money of late)? Just about the only thing growing, in this equation, is Depreciation: as such things as the Infrastructure (dams, power plants, highways, bridges, public transportation facilities and the vehicles- whether on road or rail- that use them, etc.) continue to deteriorate-- not to also mention the smaller 'd' "depreciation" of underused- or even unused- machinery and other already implemented physical plant investment and the like (such as underused/unused tools already purchased, for example).
Either way, the potential growth of the Gross National Product of the United States of America- at least for the near term- remains sluggish at best (for Consumption and Investment will now have to ratchet up even more over the ensuing months, in order to make up for the now-mandated reduction in Government spending: if it doesn't... well...) and, considering that the United States has- of late- consistently produced roughly 1/4 of the world's wealth, this does not at all bode well for Gross Global Product and, by extension, the worldwide economy as a whole-- all of which tends to make financial markets all around the globe, not just here in America, even more jittery!
Look!... up in the sky!!... it's Super Congress!!!
One more thing that comes out of this deal allowing for the raising of the debt ceiling is the creation of a Joint Committee of U.S. Senators and Members of Congress, equally divided between the two Major Parties (regardless of the political breakdown in either chamber) as well as the two chambers themselves, now charged with implementing the spending cuts mandated by this bill (if the total cuts made by this committee don't- or can't- reach a certain lower level of Federal spending by this coming November, further cuts that will reach the desired goal will then automatically kick in [thereby allowing the debt ceiling to rise by the total amount of said spending cuts]). The mainstream media is already referring to this as "the Super-committee" but many (particularly those- on either side of the political divide- appalled by this very prospect) are also calling it a "Super Congress" because, in effect, Congress has now created what amounts to a third chamber of same.
This can't be constitutional!
In any event, it is rather likely that the Federal Judiciary- empowered, by the Constitution of the United States itself, to hear all cases, in Law and Equity, arising under this Constitution, [and] the laws of the United States [per Article III, Section 2, clause 1]- will have to get involved in all this ere long and, thereby, definitively determine whether my immediately preceding statement might be right or wrong. Thus, much as everybody- Republican and Democrat, liberal and conservative, alike- would very much like to defer the next major battle over increasing the National Debt until after the 2012 Federal Elections, the courts may be placed (by someone with judicial "standing"- whoever [or whatever] that might be!- bringing suit against this particular part of the debt deal) in a position where this may well not, in the end, be allowed to happen.