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The tea party has a secret: It wants to raise your taxes. The plan is to get the government to default. Thanks to the meltdown, we now have a fiscal or federal government debt equal to the annual U.S. gross domestic product. So let's lower our bond rating, and push up the interest on that debt by 0.5, or 1, or 1.5 percent.
That's exactly what the debt ceiling does. As the co-host of a money management radio talk show said recently: "You don't call up the credit card company and tell the bank, 'I have to put my fiscal house in order, so I'm not going to pay my credit card debts." Neither can Congress, under Article I. It cannot impair the obligation of contracts.
So, yes, Congress has put down the plastic -- but it must still pay its debts. If Article I does not give such an Armageddon power to Congress expressly -- then it is not a power Congress has.
A power to impair the obligation of contracts, to cancel the debts that a government owes its creditors, is the commercial equivalent of martial law. It is not an express Article I power of the Congress - and Article I treats such impairment by the states as a constitutional abomination.
Back around the Ides of March, I wrote a piece for Politico to lay out all the reasons why Article I precludes the idea that Congress can renege on its Visa type spending "authorizations" any more than you and I can. If you're still in doubt how to resolve this no brainer, flip to the 14th Amendment for clarification.
So it's a pretty powerful argument that Congress cannot impair the obligation of contracts.
Alas, some law professors would shoo us away. And speaking of professors, let's begin with President Barack Obama, a law professor himself. The president said that his lawyers told him the constitutional question was doubtful. Why he gave away this bargaining chip, I have no idea. He would have been far better off saying nothing, and letting his enemies guess.
But are his lawyers wrong? I would never second-guess a White House lawyer. And I would agree with them if they said the following: "Mr. President, if you claim it's unconstitutional, and just keep paying the bills, we can't say what will happen."
That's perfectly true. But months ago, why didn't they go out to get a private litigant to bring a suit? Even better, they could have whispered something into the ear of a state attorney general: "Hey, give this suit a try."
Suppose the president had filed a suit, alleging this restrains him in his Office of President in executing the laws. Sure, if the president is the plaintiff, the law professors would be right. Any court would run for cover: "You two branches battle it out."
But while a suit by the president would raise a "political question" -- it's altogether different for business. I mean any business - let's say it's Ace Hardware, and it wants Treasury Secretary Timothy Geithner to pay $5 for that screwdriver.
That's no political question. It's a bread-and-butter legal question: Where's my five bucks?
The debt ceiling is, in effect, a suspension of the rule of law - for the biggest paying customer the private sector has. It gives rise to the most primal constitutional claim -- one for equitable or injunctive relief for which there will never be a legal remedy.
Indeed, by definition, the debt ceiling removes the legal obligation on which a claim for money damages would be based.
Surely any affected business - or an association of them - should be entitled to sue, has the right to sue. There have been dozens, I dare say hundreds, of cases in which businesses succeeded in claiming that Congress has done some damn thing or another to trample on their private contractual rights.
Some of these have been big cases. But there was no "political question" bar. Consider the Supreme Court's 1935 Schecter Poultry decision, which threw out the National Industrial Recovery Act, the signature law of FDR's New Deal. The unanimous court did not consider that a "political question," though it outlawed the principal program for ending the Great Depression. Why was that not a political question? Well, for one thing, it was a business that sued.
Even the Dred Scott decision passed the "political question" hurdle. Again, a businessman wanted the return of his property - which happened to be a human slave. Throughout U.S. history, property owners and creditors have an impressive win record in attacking unconstitutional laws.
Similarly, they have "standing." When it comes to "standing" in federal courts, creditors often do far better than even members of Congress. The Constitution is very friendly to creditors -- and always has been.
Sure, standing and political question can be troubling in big metaphysical type constitutional claims - say, a draftee who wants to challenge a war as unconstitutional. But the odds are far better when it's a businessman who wants to get the five bucks for his screwdriver.
Am I sure of all this? No. No one can be. But at the very least it is a jump ball, and victory may well go to the party who seems - well, just taller to the court.
Maybe that's a better way to think of "standing." This is not warmed over legal realism. For better or worse, the real world is not as real as the legal realists like to think.
But it does matter who files the suit. If the litigant is the U.S. Chamber of Commerce -- or a party with equal heft -- the court will have to take it seriously. For even idealistic judges, the passionate ones on right or left, tend to burn with a gem-like flame when a powerful litigant fans the fire.
During the 1960s, for example, the most powerful plaintiff that could give cover to an activist judge was the Justice Department. That's how we desegregated the South. Now, according to every win-loss record, it's the U.S. Chamber of Commerce.
The Constitution was set up for the protection of creditors. That's what the document is about. Now, we need these creditors to step forward to protect the Constitution.
Dear Common Dreams reader, The U.S. is on a fast track to authoritarianism like nothing I've ever seen. Meanwhile, corporate news outlets are utterly capitulating to Trump, twisting their coverage to avoid drawing his ire while lining up to stuff cash in his pockets. That's why I believe that Common Dreams is doing the best and most consequential reporting that we've ever done. Our small but mighty team is a progressive reporting powerhouse, covering the news every day that the corporate media never will. Our mission has always been simple: To inform. To inspire. And to ignite change for the common good. Now here's the key piece that I want all our readers to understand: None of this would be possible without your financial support. That's not just some fundraising cliche. It's the absolute and literal truth. We don't accept corporate advertising and never will. We don't have a paywall because we don't think people should be blocked from critical news based on their ability to pay. Everything we do is funded by the donations of readers like you. Will you donate now to help power the nonprofit, independent reporting of Common Dreams? Thank you for being a vital member of our community. Together, we can keep independent journalism alive when it’s needed most. - Craig Brown, Co-founder |
The tea party has a secret: It wants to raise your taxes. The plan is to get the government to default. Thanks to the meltdown, we now have a fiscal or federal government debt equal to the annual U.S. gross domestic product. So let's lower our bond rating, and push up the interest on that debt by 0.5, or 1, or 1.5 percent.
That's exactly what the debt ceiling does. As the co-host of a money management radio talk show said recently: "You don't call up the credit card company and tell the bank, 'I have to put my fiscal house in order, so I'm not going to pay my credit card debts." Neither can Congress, under Article I. It cannot impair the obligation of contracts.
So, yes, Congress has put down the plastic -- but it must still pay its debts. If Article I does not give such an Armageddon power to Congress expressly -- then it is not a power Congress has.
A power to impair the obligation of contracts, to cancel the debts that a government owes its creditors, is the commercial equivalent of martial law. It is not an express Article I power of the Congress - and Article I treats such impairment by the states as a constitutional abomination.
Back around the Ides of March, I wrote a piece for Politico to lay out all the reasons why Article I precludes the idea that Congress can renege on its Visa type spending "authorizations" any more than you and I can. If you're still in doubt how to resolve this no brainer, flip to the 14th Amendment for clarification.
So it's a pretty powerful argument that Congress cannot impair the obligation of contracts.
Alas, some law professors would shoo us away. And speaking of professors, let's begin with President Barack Obama, a law professor himself. The president said that his lawyers told him the constitutional question was doubtful. Why he gave away this bargaining chip, I have no idea. He would have been far better off saying nothing, and letting his enemies guess.
But are his lawyers wrong? I would never second-guess a White House lawyer. And I would agree with them if they said the following: "Mr. President, if you claim it's unconstitutional, and just keep paying the bills, we can't say what will happen."
That's perfectly true. But months ago, why didn't they go out to get a private litigant to bring a suit? Even better, they could have whispered something into the ear of a state attorney general: "Hey, give this suit a try."
Suppose the president had filed a suit, alleging this restrains him in his Office of President in executing the laws. Sure, if the president is the plaintiff, the law professors would be right. Any court would run for cover: "You two branches battle it out."
But while a suit by the president would raise a "political question" -- it's altogether different for business. I mean any business - let's say it's Ace Hardware, and it wants Treasury Secretary Timothy Geithner to pay $5 for that screwdriver.
That's no political question. It's a bread-and-butter legal question: Where's my five bucks?
The debt ceiling is, in effect, a suspension of the rule of law - for the biggest paying customer the private sector has. It gives rise to the most primal constitutional claim -- one for equitable or injunctive relief for which there will never be a legal remedy.
Indeed, by definition, the debt ceiling removes the legal obligation on which a claim for money damages would be based.
Surely any affected business - or an association of them - should be entitled to sue, has the right to sue. There have been dozens, I dare say hundreds, of cases in which businesses succeeded in claiming that Congress has done some damn thing or another to trample on their private contractual rights.
Some of these have been big cases. But there was no "political question" bar. Consider the Supreme Court's 1935 Schecter Poultry decision, which threw out the National Industrial Recovery Act, the signature law of FDR's New Deal. The unanimous court did not consider that a "political question," though it outlawed the principal program for ending the Great Depression. Why was that not a political question? Well, for one thing, it was a business that sued.
Even the Dred Scott decision passed the "political question" hurdle. Again, a businessman wanted the return of his property - which happened to be a human slave. Throughout U.S. history, property owners and creditors have an impressive win record in attacking unconstitutional laws.
Similarly, they have "standing." When it comes to "standing" in federal courts, creditors often do far better than even members of Congress. The Constitution is very friendly to creditors -- and always has been.
Sure, standing and political question can be troubling in big metaphysical type constitutional claims - say, a draftee who wants to challenge a war as unconstitutional. But the odds are far better when it's a businessman who wants to get the five bucks for his screwdriver.
Am I sure of all this? No. No one can be. But at the very least it is a jump ball, and victory may well go to the party who seems - well, just taller to the court.
Maybe that's a better way to think of "standing." This is not warmed over legal realism. For better or worse, the real world is not as real as the legal realists like to think.
But it does matter who files the suit. If the litigant is the U.S. Chamber of Commerce -- or a party with equal heft -- the court will have to take it seriously. For even idealistic judges, the passionate ones on right or left, tend to burn with a gem-like flame when a powerful litigant fans the fire.
During the 1960s, for example, the most powerful plaintiff that could give cover to an activist judge was the Justice Department. That's how we desegregated the South. Now, according to every win-loss record, it's the U.S. Chamber of Commerce.
The Constitution was set up for the protection of creditors. That's what the document is about. Now, we need these creditors to step forward to protect the Constitution.
The tea party has a secret: It wants to raise your taxes. The plan is to get the government to default. Thanks to the meltdown, we now have a fiscal or federal government debt equal to the annual U.S. gross domestic product. So let's lower our bond rating, and push up the interest on that debt by 0.5, or 1, or 1.5 percent.
That's exactly what the debt ceiling does. As the co-host of a money management radio talk show said recently: "You don't call up the credit card company and tell the bank, 'I have to put my fiscal house in order, so I'm not going to pay my credit card debts." Neither can Congress, under Article I. It cannot impair the obligation of contracts.
So, yes, Congress has put down the plastic -- but it must still pay its debts. If Article I does not give such an Armageddon power to Congress expressly -- then it is not a power Congress has.
A power to impair the obligation of contracts, to cancel the debts that a government owes its creditors, is the commercial equivalent of martial law. It is not an express Article I power of the Congress - and Article I treats such impairment by the states as a constitutional abomination.
Back around the Ides of March, I wrote a piece for Politico to lay out all the reasons why Article I precludes the idea that Congress can renege on its Visa type spending "authorizations" any more than you and I can. If you're still in doubt how to resolve this no brainer, flip to the 14th Amendment for clarification.
So it's a pretty powerful argument that Congress cannot impair the obligation of contracts.
Alas, some law professors would shoo us away. And speaking of professors, let's begin with President Barack Obama, a law professor himself. The president said that his lawyers told him the constitutional question was doubtful. Why he gave away this bargaining chip, I have no idea. He would have been far better off saying nothing, and letting his enemies guess.
But are his lawyers wrong? I would never second-guess a White House lawyer. And I would agree with them if they said the following: "Mr. President, if you claim it's unconstitutional, and just keep paying the bills, we can't say what will happen."
That's perfectly true. But months ago, why didn't they go out to get a private litigant to bring a suit? Even better, they could have whispered something into the ear of a state attorney general: "Hey, give this suit a try."
Suppose the president had filed a suit, alleging this restrains him in his Office of President in executing the laws. Sure, if the president is the plaintiff, the law professors would be right. Any court would run for cover: "You two branches battle it out."
But while a suit by the president would raise a "political question" -- it's altogether different for business. I mean any business - let's say it's Ace Hardware, and it wants Treasury Secretary Timothy Geithner to pay $5 for that screwdriver.
That's no political question. It's a bread-and-butter legal question: Where's my five bucks?
The debt ceiling is, in effect, a suspension of the rule of law - for the biggest paying customer the private sector has. It gives rise to the most primal constitutional claim -- one for equitable or injunctive relief for which there will never be a legal remedy.
Indeed, by definition, the debt ceiling removes the legal obligation on which a claim for money damages would be based.
Surely any affected business - or an association of them - should be entitled to sue, has the right to sue. There have been dozens, I dare say hundreds, of cases in which businesses succeeded in claiming that Congress has done some damn thing or another to trample on their private contractual rights.
Some of these have been big cases. But there was no "political question" bar. Consider the Supreme Court's 1935 Schecter Poultry decision, which threw out the National Industrial Recovery Act, the signature law of FDR's New Deal. The unanimous court did not consider that a "political question," though it outlawed the principal program for ending the Great Depression. Why was that not a political question? Well, for one thing, it was a business that sued.
Even the Dred Scott decision passed the "political question" hurdle. Again, a businessman wanted the return of his property - which happened to be a human slave. Throughout U.S. history, property owners and creditors have an impressive win record in attacking unconstitutional laws.
Similarly, they have "standing." When it comes to "standing" in federal courts, creditors often do far better than even members of Congress. The Constitution is very friendly to creditors -- and always has been.
Sure, standing and political question can be troubling in big metaphysical type constitutional claims - say, a draftee who wants to challenge a war as unconstitutional. But the odds are far better when it's a businessman who wants to get the five bucks for his screwdriver.
Am I sure of all this? No. No one can be. But at the very least it is a jump ball, and victory may well go to the party who seems - well, just taller to the court.
Maybe that's a better way to think of "standing." This is not warmed over legal realism. For better or worse, the real world is not as real as the legal realists like to think.
But it does matter who files the suit. If the litigant is the U.S. Chamber of Commerce -- or a party with equal heft -- the court will have to take it seriously. For even idealistic judges, the passionate ones on right or left, tend to burn with a gem-like flame when a powerful litigant fans the fire.
During the 1960s, for example, the most powerful plaintiff that could give cover to an activist judge was the Justice Department. That's how we desegregated the South. Now, according to every win-loss record, it's the U.S. Chamber of Commerce.
The Constitution was set up for the protection of creditors. That's what the document is about. Now, we need these creditors to step forward to protect the Constitution.