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orange
07-20-2011, 08:36 PM
Peter M. Shane
Author, 'Madison's Nightmare;' law professor, E-democracy researcher


An obvious question, should Congress not manage to fend off default within the next two weeks, is: What does the president do then? If the president cannot pay off America's creditors and keep all government programs running, what legal authority does he have to deal with the crisis?

A little history helps to put the answer in context. In the 19th century, Congress simply did not have a budgeting process. It appropriated funds for various federal purposes, confident that customs revenues would outpace federal spending. In the unlikely event -- unlikely, that is, before the Civil War -- that appropriations outpaced revenues, Congress implicitly left it to the president to keep expenditures and revenues in line by not spending appropriations that were permissive rather than mandatory.

Congress did not adopt a formal budgeting process until 1921, when it created the Bureau of the Budget (now, the Office of Management and Budget) in the White House and the Government Accounting Office (now, the Government Accountability Office).The 1921 Budget Act was the first to task the president with presenting Congress each year with a proposed budget for its consideration.

Flash forward now to the Nixon administration. Congress had created a statutory framework to help structure the exercise of executive branch spending discretion. But Nixon, misinterpreting 19th century practice, insisted he had inherent constitutional authority to "impound" -- that is, not spend -- government funds that he thought had been unwisely appropriated.

In the wake of Watergate and in response to Nixon's abuses of impoundment power, Congress rebelled. It said, in effect, that whatever authority presidents enjoyed to manage government funds was a consequence of authority delegated to the president by Congress, either implicitly or explicitly. And to prevent any future claims of inherent presidential impoundment authority under the Constitution, Congress enacted the Congressional Budget and Impoundment Control Act of 1974 (ICA).

Simplifying things a bit, the ICA can be understood as dividing presidential decisions not to spend appropriated money into two categories -- rescissions and deferrals. Rescinding funds means never spending them; deferring funds means not spending them right away.

The ICA basically took away any presidential right of rescission. If the president wants to cancel altogether some congressionally authorized spending, he must send his recommendation to Congress. The rescission then occurs only if, within 45 days, Congress enacts a new statute approving the proposed non-spending. In other words, unless Congress affirmatively approves the president's decision, sooner or later, he has to spend the money Congress appropriates for mandatory expenditure.

In 1974, however, Congress treated deferrals differently. Presidents could propose to defer authorized spending for a fixed period of time, and those proposals would take effect unless either the House or the Senate voted to override the proposal -- a so-called legislative veto. The problem with this arrangement turned out to be that legislative vetoes are unconstitutional. So said the Supreme Court in 1983.

At that point, the question became: Did the President now retain his authority to defer spending, no longer subject to a legislative veto? The U.S. Court of Appeals for the District of Columbia Circuit answered, "Sometimes."

Sometimes, that is, presidents want to defer spending because they think Congress did the wrong thing in funding a particular project or activity. Deferring spending on such programs really amounted to a policy objection to Congress' approved programs or activities. According to the D.C. Circuit, the Supreme Court's decision to nullify legislative vetoes effectively took the president's power of "policy deferral" away. Congress would never have enacted any policy deferral authority in the wake of the Nixon Administration, unless it knew it could retain legislative veto authority. In "law-speak," "policy deferral" authority could not be "severed" from the legislative veto.

Sometimes, however, presidents want to defer spending because, however, unobjectionable a program, deferring spending is necessary to provide for unforeseen contingencies. Sometimes, for example, deferred spending enables the government to achieve savings through unanticipated efficiencies or changes in program requirements. Such "programmatic deferrals," according to the Court of Appeals, were still permissible. They were instances of good management, not policy resistance.

Reacting to this decision, Congress amended the ICA to reflect the policy-versus- program distinction. The ICA now basically prohibits "policy deferrals," but allows "programmatic deferrals." The president may recommend deferrals to achieve savings or otherwise "to provide for contingencies." Such deferrals take effect unless Congress affirmatively legislates to overturn them -- which, of course, the president may veto if he chooses.

So, this is where the president would stand on August 2 if informed that government spending at current rates cannot continue without further borrowing, which, in turn, would violate the statutory limit on incurring government debt. The president could claim authority to defer government spending in such amounts as necessary to avoid further borrowing. He would presumably cite as his legal authority 2 U.S.C. sec. 684(b)(1), which authorizes deferrals "to provide for contingencies."

Of course, exercising his statutory "programmatic deferral" authority in this way would be deeply ironic; the president could select expenditures to defer or not defer only by making policy judgments about spending levels that are different from the policy judgments that Congress enacted in its appropriations Acts. As expressed to me in a recent email from separation of powers scholar Louis Fisher:

Recognizing a broad power of impoundment by the President to handle the federal government in the absence of a higher debt limit would permit the President to radically change budget priorities by deferring this but not that -- precisely the same kind of power that got Nixon into trouble.

And yet there seems no other option. If there is not enough money in the till to pay all the bills that are due and further borrowing is impermissible, something has to give. The idea that the Fourteenth Amendment empowers the president to unilaterally raise the debt limit is implausible. The president has statutory authority to respond to contingencies; he would have to use it.

Because nothing in the ICA would instruct the president on what basis to choose appropriations to defer -- that is, what commitments not to keep -- he would have to decide, on his own initiative, what projects and activities to put on hold to keep from violating the law. Congress would thus have tacitly abdicated to the executive branch a huge swath of the power over government fiscal policy that the Framers quite deliberately vested in Congress. The results for good government -- indeed, for constitutional government as we know it -- would be calamitous.

http://www.huffingtonpost.com/peter-m-shane/fourteenth-amendment-debt_b_903487.html

alnorth
07-20-2011, 08:44 PM
He can choose to pay, or not pay, any bill he pleases that we have the money to pay, except for payments to bondholders. Because of the 14th amendment, interest on the debt must always be the #1 priority. After that, if we have any money left, its up to him to figure it out.

ThatRaceCardGuy
07-20-2011, 08:45 PM
I don't know, but I'm sure one of these right wing guys will find something to copy and paste in here..

BucEyedPea
07-20-2011, 08:56 PM
He can choose to pay, or not pay, any bill he pleases that we have the money to pay, except for payments to bondholders. Because of the 14th amendment, interest on the debt must always be the #1 priority. After that, if we have any money left, its up to him to figure it out.

Where does the 14th Amendment say interest has to be paid first?

I know they prioritize that as first but that's about it.

alnorth
07-20-2011, 08:59 PM
Where does the 14th Amendment say interest has to be paid first?

I know they prioritize that as first but that's about it.

I'm confused.

In what way does "prioritize that as first" != "paid first"? Those phrases effectively look like synonyms to be.

ClevelandBronco
07-20-2011, 09:01 PM
I'm confused.

In what way does "prioritize that as first" != "paid first"? Those phrases effectively look like synonyms to be.

Turn your monitor upside down. That always works for me.

BucEyedPea
07-20-2011, 09:21 PM
I'm confused.

In what way does "prioritize that as first" != "paid first"? Those phrases effectively look like synonyms to be.

Well they're not. They prioritize the debt anyway. But they can sell off assets too. This 14th Amendment claim is a new twist on the ceiling issue.
However, the debt can be shown to be based on fraud too. There is no contract when there is fraud.

BucEyedPea
07-20-2011, 09:30 PM
<iframe width="640" height="390" src="http://www.youtube.com/embed/em_7dll1hVs" frameborder="0" allowfullscreen></iframe>

ThatRaceCardGuy
07-20-2011, 10:12 PM
I don't know, but I'm sure one of these right wing guys will find something to copy and paste in here..

[QUOTE=BucEyedPea copied , and pasted a youtube video[/QUOTE]

WINNER WINNER CHICKEN DINNER...surprised it took so long...then again it was a libertarian who posted it....their always slow to do things.

BucEyedPea
07-20-2011, 10:16 PM
WINNER WINNER CHICKEN DINNER...surprised it took so long...then again it was a libertarian who posted it....their always slow to do things.

As I've said many times before, since you claim to lurk, I'm not a libertarian. I just trust the judge on the Constitution generally.

BTW, where would you disagree with the judge?

ThatRaceCardGuy
07-20-2011, 10:26 PM
As I've said many times before, since you claim to lurk, I'm not a libertarian. I just trust the judge on the Constitution generally.

BTW, where would you disagree with the judge?

Nope...not going to go into detail regarding how I feel politically. I will stick to the doctrine of DC lounge, and only copy and paste sound bites and obscure articles that are painfully biased , and only support my point of view. I`ve lurked here for years here. There are rarely any rational/respectful discussions going on here, only "you don't agree with me so you're stupid" no sir , I wont waste my time ....but I will discuss football , soccer , baseball or basketball with you..this is a sports forum by the way.

BucEyedPea
07-20-2011, 10:30 PM
Nope...not going to go into detail regarding how I feel politically.
In other words you can't do much better than a cut and paste?

I will stick to the doctrine of DC lounge, and only copy and paste sound bites and obscure articles that are painfully biased , and only support my point of view. I`ve lurked here for years here. There are rarely any rational/respectful discussions going on here, only "you don't agree with me so you're stupid" no sir , I wont waste my time ....but I will discuss football , soccer , baseball or basketball with you..this is a sports forum by the way.

No this is a political forum on a sports Bulletin or Message Board with many forums. This is not a "lounge" ( which means relaxed) like the other forum. That's why there's different forums.

I won't disagree about the tone though. You get used to it and learn to do it back to survive.

ThatRaceCardGuy
07-20-2011, 10:34 PM
In other words you can't do much better than a cut and paste?



No this is a political forum on a sports Bulletin or Message Board with many forums. This is not a "lounge" ( which means relaxed) like the other forum. That's why there's different forums.

I won't disagree about the tone though. You get used to it and learn to do it back to survive.

I don't think you understand.

BucEyedPea
07-20-2011, 10:41 PM
I don't think you understand.

nope

BucEyedPea
07-20-2011, 10:43 PM
BTW Thatguy, you might enjoy the poem by Frost titled "Mending Wall."

ThatRaceCardGuy
07-20-2011, 10:46 PM
BTW Thatguy, you might enjoy the poem by Frost titled "Mending Wall."

You might try the song by the poet Jay Z...

" I got 99 problems but a bucEyedPea aint one....so if you're having BucEyedPead problems I feel bad for you son"

BucEyedPea
07-20-2011, 10:47 PM
You might try the song by the poet Jay Z...

" I got 99 problems but a bucEyedPea aint one....so if you're having BucEyedPead problems I feel bad for you son"

Do you know what it's about? It's about how fences can make good neighbors...ya' know as in a divider as in separating a forum off a main one.

ThatRaceCardGuy
07-20-2011, 10:50 PM
Do you know what it's about? It's about how fences can make good neighbors...ya' know as in a divider as in separating a forum off a main one.

Yup , read it in college...and you and the DC clowns are still trolls.

BucEyedPea
07-20-2011, 10:51 PM
Yup , read it in college...and you and the DC clowns are still trolls.

You know what they call that? Projection.

ThatRaceCardGuy
07-20-2011, 10:56 PM
You know what they call that? Projection.

You neg repped me! Awesome ! lol...

ThatRaceCardGuy
07-20-2011, 10:58 PM
I can see you guys get way to butt hurt over here...jezz, a few remarks and you put me in the red lol.....

alnorth
07-20-2011, 11:03 PM
Well they're not. They prioritize the debt anyway. But they can sell off assets too. This 14th Amendment claim is a new twist on the ceiling issue.
However, the debt can be shown to be based on fraud too. There is no contract when there is fraud.

How can the debt be shown to be a fraud?

Article one of the constitution gives to congress the authority to borrow money, and they used that authority to borrow money up to our current debt. What that money was spent on is irrelevant. The money was loaned to our country in good faith, and that loan was authorized by the body that had the legal authority to borrow it. It is a legal debt, and the 14th requires that we must pay the interest on that debt, if we can, first before anything else.

Your Napolitano clip supports that view. He argued that if the president mistakenly believed the 14th allowed him to ignore the fact that article 1 gives borrowing authority only to the congress and he then exceeded the debt limit, then that excessive borrowing is illegal, secured only by the non-binding promise of the president, and we could legally choose not to pay that illegal debt off.

That has not happened here. Our debt is legal, and the 14th constitutionally obligates us to pay that interest, if we can, first before all other debts.

alnorth
07-20-2011, 11:07 PM
I will stick to the doctrine of DC lounge, and only copy and paste sound bites and obscure articles that are painfully biased , and only support my point of view. I`ve lurked here for years here. There are rarely any rational/respectful discussions going on here, only "you don't agree with me so you're stupid" no sir , I wont waste my time ....but I will discuss football , soccer , baseball or basketball with you..this is a sports forum by the way.

You are a stupid worthless troll.

I do not deny that many arguments or points on this board are silly or stupid, but most people still at least pretend to argue in good faith. You are just throwing grenades and laughing when the people you troll get pissed.

I'm putting you on ignore, I wont see any of your silly crap again.

ThatRaceCardGuy
07-20-2011, 11:12 PM
Nope...not going to go into detail regarding how I feel politically. I will stick to the doctrine of DC lounge, and only copy and paste sound bites and obscure articles that are painfully biased , and only support my point of view. I`ve lurked here for years here. There are rarely any rational/respectful discussions going on here, only "you don't agree with me so you're stupid" no sir , I wont waste my time ....but I will discuss football , soccer , baseball or basketball with you..this is a sports forum by the way.

You are a stupid worthless troll.

I do not deny that many arguments or points on this board are silly or stupid, but most people still at least pretend to argue in good faith. You are just throwing grenades and laughing when the people you troll get pissed.

I'm putting you on ignore, I wont see any of your silly crap again.


Soooooo ..you`re mad because I spoke the truth ?..LMAOLMAO

blaise
07-21-2011, 06:08 AM
I don't know, but I'm sure one of these right wing guys will find something to copy and paste in here..

You mean like the one copied and pasted into the opening post?

Der Flöprer
07-21-2011, 06:53 AM
Dottefan

blaise
07-21-2011, 06:55 AM
Dottefan

That actually crossed my mind.

ThatRaceCardGuy
07-21-2011, 06:57 AM
You mean like the one copied and pasted into the opening post?

Pretty much :thumb:

BucEyedPea
07-21-2011, 07:16 AM
How can the debt be shown to be a fraud?
Where'd the money come from?

Your Napolitano clip supports that view.
He didn't regarding the issue of the debt ceiling though which is why I put it up.


That has not happened here. Our debt is legal, and the 14th constitutionally obligates us to pay that interest, if we can, first before all other debts.

I beg to differ since I clearly referenced the 14th to the debt "ceiling." Napolitano did not agree with that assessment. Furthermore, Napolitano says it was one of the Civil War amendments. Do you know what happened after the war that drove the bankers who bankrolled both sides of that conflict nuts? Lincoln and later Johnson was going to forgive the South their war debt as an act of mercy. I can imagine who lobbied for that to be put in the amendment. I imagine it's the same banksters who create money out of thin air and loan it to the US govt.

BTW Ron Paul says our debt is phony too. He's right.

Amnorix
07-21-2011, 07:26 AM
Well they're not. They prioritize the debt anyway. But they can sell off assets too. This 14th Amendment claim is a new twist on the ceiling issue.
However, the debt can be shown to be based on fraud too. There is no contract when there is fraud.

OMFG. Your nuttiness knows no bounds.

Amnorix
07-21-2011, 07:28 AM
Yup , read it in college...and you and the DC clowns are still trolls.

Then why are you here?

Amnorix
07-21-2011, 07:31 AM
I beg to differ since I clearly referenced the 14th to the debt "ceiling." Napolitano did not agree with that assessment. Furthermore, Napolitano says it was one of the Civil War amendments. Do you know what happened after the war that drove the bankers who bankrolled both sides of that conflict nuts? Lincoln and later Johnson was going to forgive the South their war debt as an act of mercy. I can imagine who lobbied for that to be put in the amendment. I imagine it's the same banksters who create money out of thin air and loan it to the US govt.

BTW Ron Paul says our debt is phony too. He's right.



http://www.gusto-graphics.com/updates/wp-content/uploads/2011/02/SENSE__This_picture_makes_none_by_Mathan552.jpg

and neither do you.

Jaric
07-21-2011, 07:58 AM
So did they paint the goalposts in camo or are those just stripes?

EDIT: Also, I might end up staring at the picture all day. I mean why would they bring guitars to play soccer? I played soccer in highshool. And guitar for that matter. And I never found a reason to combine the two activities.