If the Debt Ceiling is a Constitutional Crisis, What Should We Do About It: Posner and Vermeule’s Thoughts on Constitutional Showdowns

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Constitutional Showdowns

Eric A. Posner & Adrian Vermeule

156 U. Pa. L. Rev 991 2007-2008

This post is really in no way about the Debt Ceiling per se. I hope you don’t feel betrayed. Mainly because I am woefully uneducated about that topic. I really don’t know what is going on there. All I really know is different parties in Congress and the President have differing Constitutional interpretations and pundits and academics have been throwing out “Constitutional Crisis” when discussing it. The title of the post could just as well be “if the conflict in Libya is a constitutional crisis…”. So, since the Debt Ceiling issue is topical, and Posner and Vermeule’s paper has been in my queue, it seems like a good time to take a look at crises and showdowns.

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If the world was overrun with good faith cooperation and coordination for socially beneficial aims, all the upholding principles of justice, then formal government might not be too terribly necessary. For instance, 4 friends (who all like Italian food) picking a restaurant to eat at probably do not need to set up a formal external government with a Supreme Court, Congress and President. Informal norms will probably take care of that situation.

But people disagree- over where to eat, where the edge of their property is, where the jurisdiction of the Supreme Court begins and ends, and of course what the Constitution means. Disagreement in situations where there are high stakes can lead to a showdown or a crisis. Well, what’s a person to do?

Enter Posner and Vermeule. “Constitutional Showdowns” is one of my favorite papers right now- I like both how it is written and presented and I tend to agree with everything in there. Let’s explore it.

First, let’s start off with the definition of a showdown or crisis from page 997:
(1) a disagreement between branches of government over their constitutional powers that

(2) ends in the total or partial acquiescence by one branch in the views of the other and that

(3) creates a constitutional precedent.

Alright good, a nice concise workable definition of a showdown or crisis. I guess a showdown is different from a crisis. A crisis exists and then a showdown occurs. How prevalent are these showdowns and crises? Certainly not too prevalent in the USA where we have only had one civil war, been a world superpower for a long time, good human rights record etc. But, actually we have had our share:

(Taken from my thoughts or in their paper)

The Johnson Impeachment

The Nixon Impeachment

The Clinton Impeachment

United States v. Nixon (the Nixon tapes)

United States v. Nixon (the impeachment of the federal judge)

Ex Parte McCardle

Ex Parte Merryman

The Civil War

Reconstruction

Bush v. Gore

New Deal

Marbury v Madison

Youngstown Sheet & Tube Co. v. Sawyer

Vietnam and everything to do with the War Power Resolution

Iran Contra Scandal

Others?

All the stuff with unions and the governor in Wisconsin (state constitution, not US)

President Eisenhower deputizing the Arkansas National Guard to enforce desegregation

Debt Ceiling?

Libya?

That’s just a partial list. I know I am probably neglecting many important ones. But, you get the point that there a lot. Why did these occur? It might be too simplistic to say this, but mainly because one branch or person felt like they had the authority through the Constitution to take a certain action, but another branch felt differently. There is often a great deal of “wiggle room” in the Constitution for certain situations. A simple and often used example is the President’s duty to be commander in chief, and the power of Congress to declare war. What if both try to exercise power in a situation where the other one would also like to have exclusive jurisdiction on the issue?

Let’s come up with a hypothetical situation here, although it will probably sound like a lot of scenarios that actually have happened, this is just a thought experiment. I will create a Congress versus the Executive Constitutional showdown. It gets a little crazy, but bear with me. {I went a little overboard with my hypothetical, so I moved it to a separate post here}.

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Phew, scary isn’t it? It got a little crazy, but thanks for sticking with me. I think I butchered a number of technicalities in my little story, but really none of the details matter that much. I just tried to show a country’s worst nightmare and how it involved a bunch of crises and showdowns. We can go back to reality now.

Normally things don’t get that bad, because someone acquiesces in part or in full. But, we now have an example of interbranch political showdown. Let’s move on to the analysis of what to do.

Parts II and IV of the paper are relevant here. It begins with the social costs of a constitutional showdown which is probably what most people think about. But, it also dives into the social benefits that constitutional clarification can provide. Then they give a nice “formula” of sorts that explains the basic balancing calculus you must do in order to decide whether to acquiesce or hold you ground.

From page 1010, what are the costs of a showdown? Governance is interrupted while the debates lingers on. The benefits? “A showdown clarifies constitutional authority, reducing decision costs for the government and public in the future”. A clarified constitution retains the benefits that law provides in general (at least from a positivist perspective), i.e. a way by which people can organize their affairs and go about their lives with reasonable certainty of how a dispute will be decided. Ergo why stare decisis is important, but not unbreakable at the Supreme Court level. The costs is still large though.

For instance think about Bush v Gore (P and V use this example). While the various courts decided the limbo was not socially optimal. Or right now with the debt ceiling. Or,  like Posner and Vermuele point out, if the showdown is about a war, the war lingers on while the politicians debate over who has authority. In essence, it is sort of like the costs of attrition. There is like a daily penalty that subtracts from the overall utility of having the showdown in the first place and the utility of the subsequent precedent*. Moreover, P and V suggest that in a very tense showdown, one “sticky” issue could turn into many sticky issues where essentially all the “logrolling” ceases as institutions begin to go into a no compromise no cooperate on ANY issue mode.

* (Interestingly the Supreme Court doesn’t usually seem to have that problem, although it would be interesting to see if the “precedential value” in terms of how society embraces a decision is related to how long the Court takes. If anything it seems people would think that if the court takes a long time, they must have thought about it really hard and came up with the best answer.)

Now let’s look at “the magic formula” (my term not theirs):

“In sum, the optimal outcome can be described in the following way.  Suppose that an agent asserts control over a policy area.  Another agent should acquiesce if it believes the first agent does in fact have that authority, rooted in public constitutional sentiment.  If it does not believe the first agent has such authority, then it should acquiesce only if it believes the long-term gains from a showdown that leads to a clarification of constitutional authority are less than the short-term costs from delay, including the diversion of government resources and the lost option value that results from a premature and possibly erroneous decision that does not exploit future information”

And from their implications section,

“decisive constitutional conflicts and precedent-setting showdowns should  actually be encouraged where the value of waiting for more information is low, where similar issues will frequently recur in future generations (so that the value of settling questions now is high), and where legal uncertainty will impose high costs in the future.”

I like this framework and the suggestions. I’m not going to apply it to a particular topical issue right now, but I kind of wish someone would. But, I will spend a little time looking at the active versus passive virtues.

They are sort of fight or flight. Fight is active. Gore “played” active for a while until the Supreme Court ruled “definitively”. Lincoln played active when given Ex Parte Merryman. Marshall kind of played fight in Marbury v Madison?

Passive is flight. There are lots of Supreme Court doctrines that encourage flight: standing, mootness, ripeness, political question, its discretionary selection of cases.

The obvious parallel to fight or flight (which I guess in its own analogy) is the chicken game which P and V mention. The game theory implications are pretty obvious here too I think.

So, several important considerations flowing from this article:

Skirting the Constitutional issue is not always the socially optimal way to go

Constitutional Crises occur a little more often than we think

Although I didn’t write much on it, “popular constitutional sentiment” is important

If the President got really mad at Congress, maybe he could sell the White House…

Next up is either Weingast Part II or maybe Strauss.