Not Everything You Don't Like Is Unconstitutional

The strange tic, on both the left and the right, of assuming the Constitution enacts all your policy preferences

Josh Marshall has a very nice thread about how the Republicans treat the debt ceiling the way some abusive kid who knows someone will always be around to clean up his messes acts. I recommend you read it:

However, there’s one thing in the otherwise great thread that really ticked me off. It’s this:

Refusing to issue debt does not violate the Constitution. It simply doesn’t. Indeed, the Constitution is the reason we have this dumb debt ceiling process where Congress has to spend money and then later pass another law authorizing borrowing of the funds actually spent. The first two paragraphs of Article I Section 8, describing the powers of Congress, deal with spending and debt:

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; [and]

To borrow Money on the credit of the United States….”

And Article I Section 9, dealing with powers denied to Congress, states:

“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”

That’s a lot of verbiage, so let me break it down. Congress has the POWER to impose taxes, and to pay the debts of the United States. It doesn’t have to, but it has that power. Congress also has the power to borrow money on the credit of the United States. Again, it doesn’t have to, but it has that power.

The limit on that power is that Congress can only SPEND money by means of a appropriation made by law, and must publish an account of its receipts and expenditures.

So there you go- if Congress wants to spend money, it must pass a law. If Congress wants to borrow or tax, it can do so, but isn’t required to do so. Nothing in that language prohibits Congress from passing an appropriation and then not authorizing the taxation or borrowing to pay for it.

And by the way, while that may seem to not make a lot of sense, I suspect it probably did make sense to the framers. Even in the 18th Century, the notion of devaluing or defaulting on sovereign debt existed- indeed, there was extensive discussion at the time of the founding of this country about how to treat colonial war debt and whether any of it should be defaulted. While it is true that it would be absolutely crazy for a rich country like the United States in 2021 to default on debt, it isn’t ALWAYS crazy- imagine if the United States had a rockier economic history, and never became an economic power, leaving it with huge amounts of sovereign debt obtained under coercive circumstances like some developing countries hold. In that situation, can you see why the framers might have wanted to leave an out for a default?

In any event, this isn’t meant to be a primer on debt default and the Constitution. It’s about something else. The reason Josh Marshall, a talented writer and reporter, said that ridiculous thing about the Constitution- as a throwaway- is because many people take for granted that whatever it is they don’t like isn’t just bad, but unconstitutional.

You see this all the time. The most obvious example is all of the Republicans’ Obamacare lawsuits, filed and supported by libertarian lawyers who can’t imagine that the Constitution they love so much might actually permit the government to pass a huge social welfare program. News flash: it does.

More examples on the right: conservatives who insist that the Constitution doesn’t separate church and state (despite the Establishment Clause), that the Second Amendment prohibits even minor gun control measures (they say that “shall not be infringed” means that countervailing interests cannot even be considered, a mode of interpretation that nobody use with any other constitutional provision), and that the “proper” portion of the “necessary and proper" clause (which authorizes Congress to exercise powers even if not expressly conferred in the Constitution) means that any legislation conservatives don’t like is “improper” and thus unconstitutional.

And then you have the left. A recent op-ed argued the California recall system (which, to be clear, is dumb) is unconstitutional, because the replacement might get in with less votes than the incumbent got- an argument that completely ignores that the replacement vote is separate from the recall vote and is basically a second election. Gerrymandering, which has been legal for over 200 years and which Democrats, until recently, vehemently defended in litigation, is suddenly unconstitutional because Democrats concentrated into major cities and thus it became easier to pack them into congressional districts. It was unconstitutional for Mitch McConnell to deny Merrick Garland a hearing before rejecting his confirmation, even though confirmation hearings are a very recent development and many judicial nominations in the country’s history were passed on without a hearing.

To avoid this tic, you have to do what Josh Marshall didn’t do. Before you say something is unconstitutional, you need to look up the law. And you need to do it fairly, because the public discourse is governed by rules of intellectual honesty that lawyers don’t have to follow in court cases.

And this is actually somewhat important. The notion that “the Constitution enacts all of my policy preferences” changes the nature of political debate. It almost demands demonization of your political opponents. After all, instead of having a different view than you do about gerrymandering or health insurance, they are trying to violate the most important law in our legal system. They are effectively criminals! They are subverting our charter and our system of government!

It’s therefore really important that public intellectuals, pundits, and commentators not do this. Don’t reach to the Constitution every time you think a policy is bad. Believe me, the Republicans’ debt ceiling brinksmanship is bad. It threatens the country with financial upheaval for no good reason. It doesn’t matter that the Constitution permits it.