The Far Right Case for Default

Posted on May 15, 2023 by whungerford

The validity of the public debt of the United States, authorized by law … shall not be questioned.–Fourteenth Amendment

In an opinion article in The New York Times, Michael W. McConnell, a senior fellow at the right-leaning Hoover Institution, argues that the Fourth Amendment can’t be used to prevent default, in case of no timely action to raise the debt ceiling.

He claims:

  • Default is permissible, whatever the consequences, because the debt would remain valid, even if not serviced as required.
  • Bond’s issued in excess of the debt limit not otherwise authorized by Congress would be invalid.

McConnell’s argument depends on the meaning of validity. After the Civil war, validity meant that lenders would be repaid. It probably means that today. It isn’t clear if valid means lenders must be repaid on time.

McConnell says the President must negotiate with Congress. This isn’t in the spirit of The Constitution which makes Congress solely responsible for making laws and the President responsible for executing them. The Constitution is silent on the possibility of inconsistent laws or laws that can’t be executed.

McConnell implicitly disparages debt by favoring limits over solutions which don’t limit spending. He doesn’t say if recent appropriations supersede the debt limit law, which is an argument for disregarding it. Nor does he mention the claim that observing the debt limit would require the President to break other laws.

McConnell’s overall argument depends on cherry picking–putting forth reasons in support of his opinion and disregarding the opinions of those who disagree. On one point most do agree–the best outcome is for Congress to vote to raise the debt limit.

McConnell predicts disregarding the debt limit based on the Fourteenth Amendment would have consequences as dire as default. On this he may be right, which is one reason other outcomes are preferable.

McConnell is a professor and the director of the Constitutional Law Center at Stanford Law School and a senior fellow at the Hoover Institution. He was a judge on the U.S. Court of Appeals for the 10th Circuit from 2002 to 2009.

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Rep Langworthy on the economy

Posted on May 14, 2023 by whungerford

Certainly labor, number one concern, every employer, every sector of the economy that I’ve talked to. Keeping workers is hard. There are perhaps people that don’t really want to work, and I’m sorry, but we can’t be all things all people. Just because you don’t want to work doesn’t mean you don’t have to work.–Rep. Langworthy

Rep. Nicholas Langworthy (R-NY) held an unannounced meeting with small business owners in Elmira on Monday, May 6. Reportedly, Rep. Langworthy said:

I think we’re definitely on the cusp of a downturn. I mean, you have the heightened interest rates, the labor crisis, inflation, it has stagnated this economy to the point where we are likely on the cusp or in a recession. We don’t know quite yet. It certainly feels that way. People are a little more cautious with their spending. They’re not making those big, discretionary purchases, and they’re concerned about their bottom line and providing for their families. We have a lot of jobs. That’s the only difference. Right now, we have a lot of jobs if you need a job, you can find a job. We need more people to want to go find a job. That’s one of our biggest crises here, is employers tell me every day they can’t get enough workers. We need to incentivize that, we need to as Americans have this tough conversation. It’s time to go back to work.

I think that what we need to do as Americans have these conversations in our own households and in our communities and I use the bully pulpit of this office to have that conversation. We need to have a strong America. We need a strong workforce. We need to, you know, treasure and honor, not just leisure time. But you know the fact that people you know have a job, they make a living, and they provide for their families and that is a an incredibly honorable thing that we need to celebrate. It’s certainly you know, the time-honored traditions that this country is founded on. You know, self-determination, that you could be whatever you want to be, nothing is pre-ordained for you, and those opportunities exist, and I see those opportunities every day when I travel across this district. We have amazing workforce. We have great people. We have great educational institutions. We just have to get it all working in the same direction. We have our obstacles here in the southern tier, but our best days can be ahead of us.

At a time of record employment, negative Nicholas, with his part-time, high paid job, blames us for not wanting to work. He predicts economic decline, but doesn’t mention his party’s plan for sabotage.

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The House operates like a 17th century pirate crew

Posted on May 10, 2023 by whungerford

Seventeenth century pirate crews were nominally democratic much like today’s House. They had norms and rules. The Captain held office at the pleasure of the crew. As in Treasure Island, the Captain could be given “the black spot,” a demand for an election. In the House, the equivalent is a motion to “vacate the chair.”

Pirate captains maintained their position by showing competence and by creating a fearsome reputation. Blackbeard, very successful at piracy, was able to participate in colonial American society, while keeping his leadership position as captian with a reputation for ruthlessness. With his reputation, Blackbeard was often able to win without a fight.

When a potential prize was sighted, the crew voted on how to act–to attack or not. But once a fight started, of necessity the Capitan gave the orders and was obeyed.

Today Speaker McCarthy’s problem is that his caucus is rebellious. He gained his position by granting concessions, which weakened his reputation. He evidently isn’t much feared; he can’t give G. Santos the boot for fear of losing even one vote. In the battle over the debt ceiling, he can’t expect to be obeyed, making his stated intention to avoid default difficult at least.

Does the Speaker have a plan B? He has publicly rejected several potential solutions. He has little room to maneuver left. Rather than winning without fighting, or winning in a fight, he stands to lose the battle.

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Supreme Court Ethics

Posted on May 9, 2023 by whungerford

The judges, both of the supreme and lesser Courts, shall hold their Offices during good Behavior, … –Article III, Section 1 of The Constitution.

Congress “indisputably has the power under the Constitution” to “enact laws prescribing the ethical standards applicable to the nonjudicial conduct and activities of the Supreme Court of the United States.” — J. Michael Luttig, retired appeals court judge

How low can the court go? The highest court in the land should not have the lowest ethical standards. — Senator Richard J. Durbin (D-IL)

All members of the court do in fact consult the code of conduct in assessing their ethical obligations,” he wrote, adding: “Every justice seeks to follow high ethical standards, and the Judicial Conference’s code of conduct provides a current and uniform source of guidance designed with specific reference to the needs and obligations of the federal judiciary. — Chief Justice Roberts in 2011

Are reports of questionable behavior by supposedly conservative judges “an unseemly effort” to “delegitimize the Roberts court,” as asserted by Senator Lindsey Graham (R-SC), or are they obvious examples of bad behavior.

The Constitution fails to define good behavior or provide any remedy other than impeachment. The Constitution implies that there should be a Chief Justice, but grants no power over the other Justices. The Chief Justice has been described as “the first among equals.”

Congress could attempt by law to impose ethical standards on the Justices. Paradoxically, the Court could rule against that. Could the Court remove a Justice for bad behavior? It never has done that.

Read more here.

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Debt Ceiling 2023

Posted on May 8, 2023 by whungerford

The possibility that the federal government will soon be unable to finance its normal operations has become very real. As I wrote in my last column, this won’t be because investors view U.S. debt as excessive; America in 2023 isn’t Greece in 2009. If it happens, it will be because Republicans in the House are trying to use the debt ceiling to extort policy concessions they would have no chance of enacting through the normal legislative process.—Paul Krugman, In defense of debt gimmicks

If the government fails to raise the debt limit before the X-date, the Treasury Department will have to default on at least some bills. Officials might try to pay some debts and not others, but it is not clear whether such prioritization would be politically palatable or practical.–“We Hit the Debt Limit. What Happens Now?” Jeanna Smialek and Ashley Wu “The New York Times,” May 8, 2023

If the government fails to raise the debt limit in time, the Treasury Department will need to take action.

  • The Treasury could pay only interest and principal on its bonds.
  • The Treasury could arbitrarily pay some bills and not others.
  • The Treasury could pay bills as they come due until the money runs out.

None of these are desirable. Bills not paid when due could include Social Security benefits and military salaries.

Other possible expediencies include:

  • Congress could temporarily raise the debt limit or suspend it.
  • The Administration could ignore the debt ceiling law as unconstitutional under The Fourteenth Amendment.
  • The Treasury could adopt a gimmick as suggested by Paul Krugman.
  • Congress could repeal the debt limit, resolving today’s crisis and future crises.

Any of the above would be better than default on government bonds, which economists predict would be catastrophic. Of all the problems we face, this should be the easiest to solve: just do it.

Reporters Smialek and Wu conclude:

At the end of the day, all paths lead to the same place: The United States will need to find a way to pay the bills it has incurred. The question is how much damage happens along the way.

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A Republican Form of Government

Posted on May 6, 2023 by whungerford

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.–Article IV, Section 4 of The Constitution

[W]e may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; . . . It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified[.]–James Madison, Federalist 39

Madison say a Republican Form of Government:

  1. derives all its powers directly or indirectly from the great body of the people
  2. is administered by persons holding their offices during pleasure, for a limited period, or during good behavior.
  3. be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it
  4. persons administering it (the government) be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified

There is reason to doubt that the Federal Government today meets Madison’s standard for a “Republican form of Government,” thus is unable and unwilling to guarantee that to the states.

  1. The electorate is something less than “the great body of the people.”
  2. Many hold office for no reason other than party allegiance, whether their behavior be good or not.
  3. The wealthy class has undue influence.
  4. Some elected officials hold office in spite of bad behavior.

I disagree with Madison’s condition of “limited terms;” I believe experience is important in government as in other human endeavors and that term limits alone are no guarantee of good behavior. Perhaps experience was less valuable in Madison’s time.

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Yi Hang-no on Good Government

Posted on May 5, 2023 by whungerford

In “Korea’s Place in the Sun,” a history by Bruce Cumings, Cumings quotes Confucian scholar Yi Hang-no, who wrote in 1866:

If from now on the King starts by rising early and going to bed late, and if the ministers take oaths among themselves to cut out the evils of parties and merriment, be diligent in cultivating frugality and virtue, do not allow private considerations from taking root in their minds, and do not use artifice as a method of operation in government affairs, then the officials and common people will all cleanse and purify their minds … abandon the habits of luxury and extravagance; make the palace humble and partake simply and sparingly of food and drink; shun fancy clothes and devote all efforts to the people’s affairs … Then the strength of the people will be greatly extended and public opinion will be in harmony, and the people will look up to you as a father and mother … Only after things are done like this can the Western barbarians be driven off and the state preserved.

Yi Hang-no may have been on to something.

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Do No Harm Act

Posted on May 4, 2023 by whungerford

As a Baptist minister and longtime participant in the interfaith movement, I know firsthand the importance of faith in many people’s personal lives, as well as the role religion can play in the civic life of communities across the country. Unfortunately, in the past several years, we have seen how the constitutional right to religious freedom has been distorted and weaponized to the detriment of religious minorities, LGBTQ+ people, people seeking reproductive medical care, and more.— The Rev. Paul Brandeis Raushenbush, President and CEO of Interfaith Alliance

Rev. Raushenbush spoke in Elmira on May 2, 2023. The Interfaith Alliance, urges swift action on the “Do No Harm Act;” they write:  

People of faith and conscience know that religion should be a bridge, not a bludgeon. Our nation is built on the principle that each of us has the freedom to believe as we choose, with respect for others to do the same. Religious freedom should go hand in hand with civil rights: the “Do No Harm Act” codifies this patriotic sentiment into law, protecting the integrity of religion and democracy.

The Do No Harm Act would clarify the federal Religious Freedom Restoration Act (RFRA) to ensure that no one can cite religious belief to undermine the Civil Rights Act, limit access to health care, or refuse services to those who live or love differently than they do.

H.R.1378 – “Do No Harm Act” was introduced in the 117th Congress by Rep. Robert Scott (D-VA). It had 206 cosponsors, all Democrats. It died in committee. Here is the CRS Summary:

This bill prohibits the application of the Religious Freedom Restoration Act of 1993 (RFRA) to specified federal laws or the implementation of such laws. Currently, RFRA prohibits the government from substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability, except in furtherance of a compelling governmental interest when using the least restrictive means.

Under the bill, RFRA is inapplicable to laws or the implementation of laws that

  • protect against discrimination or the promotion of equal opportunity (e.g., the Civil Rights Act of 1964);
  • require employers to provide wages, other compensation, or benefits, including leave;
  • protect collective activity in the workplace;
  • protect against child labor, abuse, or exploitation; or
  • provide for access to, information about, referrals for, provision of, or coverage for, any health care item or service.

The bill prevents RFRA from being used to deny (1) goods or services the government has contracted, granted, or made an agreement to provide to a beneficiary of or participant in a program or activity funded by such government contract, grant, agreement, or other award; or (2) a person’s full and equal enjoyment of a government-provided good, service, benefit, facility, privilege, advantage, or accommodation.

In order for a person to assert a RFRA claim or defense in a judicial proceeding, the government must be a party to the proceeding.

H.R.2725 – “Do No Harm Act” was introduced in the 118th Congress again by Rep. Robert Scott (D-VA). It has 93 cosponsors, all Democrats. There is no CRS Summary yet.

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Is the Debt Limit Constitutional?

Posted on May 3, 2023 by whungerford

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.–Fourteenth Amendment (Section 4)

The debt ceiling crisis continues to dominate the news, with some speculation now that White House officials are wondering whether the Fourteenth Amendment to the Constitution might require the government to continue to pay its bills whether Congress actually raises the debt ceiling or not.—Heather Cox Richardson

Should President Biden ignore the debt ceiling law, The Fourteenth Amendment to The Constitution might well permit it. It would remove the threat of default now and in the future. President Biden surely would prefer that Congress raise the limit or repeal it. However, there is precedent for a president to ignore laws and The Constitution–TFG ignored the Emoluments Clause of the Constitution, our highest law, effectively making it moot (he ignored other laws and norms as well). Ignoring the law would provoke howls of outrage from Republicans, while doing them two favors:

  • It would get them off the hook at present.
  • It would spare them from future difficulty if there should be a future Republican Administration.

These are two reasons that President Biden might be loath to act; doubtless there are others.

Ignoring the debt limit law would create a constitutional crisis. The Supreme Court has been reluctant to take sides in disputes between President and Congress. If it did take up the issue, it is hard to see how the Justices could reconcile the debt limit law with The Fourteenth Amendment. If they did find the debt limit constitutional, the only obvious remedy would be impeachment, which would not likely succeed and wouldn’t solve the the problem of the deficit if it did.

Accounting tricks have been suggested for resolving the default crisis, trillion dollar coins for example. These would solve the problem with a lie: keeping the debt ceiling law on the books while the debt grows above it. I don’t think it wise to kid ourselves. “We the people” ought to demand that Congress act.

It is generally said that default is unacceptable. Yet Congress may not be able to do its duty. I suspect the solution will be a short term extension of the debt limit, a common expediency.

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Asa Hutchinson

Posted on May 1, 2023 by whungerford

I think it will be a narrower field than 2016 (when 17 Republicans fought it out). It will be more like eight. Trump is not the standard bearer. He’s out of office, and I don’t consider him the leader of our party. We’re fighting for new leadership.–Asa Hutchinson

Asa Hutchinson is a candidate for President. In his announcement, he said:

I was born in the old Bentonville Hospital; my first law office was across the square from where we stand today; I tried jury trials in this courthouse; I built Bentonville’s first FM radio station; I served as Bentonville’s City Attorney; and this is where Susan and I started our family and spent some of our happiest years living on 15 acres of rocks and hills west of town in a double-wide mobile home.

It was here on these steps, over 30 years ago, that I announced my run for the United States Senate. At that time Arkansas was a blue state and the Republican Party was pretty much non-existent. I stepped up to take on runaway federal spending; to fight for a strong national defense; to support the life of unborn children; and to unleash the private sector of our economy.

In other words, I ran as a conservative Republican when being a Republican was like having a career-ending handicap.

I continued to fight the establishment and over time . . . we won.

That was the beginning and since then I have been a consistent conservative through my time as leader of the party; in the U.S. Congress and as Governor.

Here are his views on some issues:

BORDER SECURITY

As a former Undersecretary of Homeland Security during the George W. Bush administration, I see what is happening along our southern border and recognize the severe lapse in leadership from the Biden-Harris administration. This administration is showing weakness every day, which jeopardizes the safety of our ranchers and families along the border and signals to the world that the United States is no longer interested in protecting our nation.

STRONG NATIONAL DEFENSE

A strong national defense is the bedrock of our democracy. I have served at the highest levels when it comes to ensuring America remains strong in our national defense and that Americans are protected. Our men and women in uniform deserve our best and I will never stop fighting for those who selflessly serve our nation.

HOLD CHINA ACCOUNTABLE

For too long, America has been dependent upon China for the stabilization of our economy. We can continue a trade partnership with China, but it must be one that protects American interests and promotes American ideals.

RUSSIA

Russia is a threat to our national security and a threat that must be taken seriously. As Undersecretary of Homeland Security, I have firsthand experience dealing with world leaders to keep America safe.

CRIMINAL JUSTICE

In our democracy, the rule of law is foundational. The law undergirds liberty when the law is applied equally, with restraint and for the greater good. Yes, we must keep violent offenders off our streets and behind bars, but we must also address unfairness in sentencing. We can — and should — do both.

TAXES

Every American feels the strain of an overburdensome tax code. We must reform our tax code nationally and lower taxes just as I did in Arkansas.

INFRASTRUCTURE

It is long past time for a nationally robust infrastructure package. Highways, roads, and bridges across this country are in desperate need of repair. Additionally, access to high-speed broadband — for all Americans — is imperative to our future success as a nation. Republicans on Capitol Hill support this endeavor, but they do not — nor should they — support the out-of-control and unnecessary spending promoted by national Democrats.

HEALTHCARE

The federal government should never be the sole provider of healthcare to Americans. If that happens, quality of care will decline. We must instead return to the power of consumer choice. These are the virtues that improve quality and lower costs. States must also be given the freedom and flexibility to innovate in order to meet the unique challenges at home.

RELIGIOUS LIBERTY

Our nation’s founders understood that rights are not given by man, but rather bestowed upon us by our Creator. This worldview is foundational to good governance and the success of the United States of America.

UNITY

The success of any democracy is dependent upon agreement on a set of values. For America, we are all in this great land because we or our ancestors left other shores in search of freedom and greater opportunity. The freedoms that unite us are enshrined in our Bill of Rights. And, it is our Constitution which limits the power and role of government therefore proscribing how different parts of government act as a restraint against the cumulative power of the whole of government. Today, we have a nation divided and we must return to what brings us together and not what pulls us apart. That is why it is so important that we seek out leaders that bring out the best in America rather than those that give in to our worst instincts. I believe that we must respect dissent and stand together on the common ground of freedom, equality, and fairness.

ENERGY INDEPENDENCE

Our nation is blessed with tremendous energy potential and leaders in Washington, D.C. should implement policies to unleash it. Unfortunately, the Biden-Harris administration has done the opposite by imposing a federal ban on oil and gas leases. Americans deserve plentiful, affordable energy options, and we should not be beholden to the threats and whims of foreign adversaries for our energy needs. As president, I will pursue policies to make our great nation energy independent.

I find Gov. Hutchinson’s positions long on generalities and short on specifics. He says: I will pursue policies to make our great nation energy independent, but doesn’t say what those policies are or why they are in the public interest. He assumes that conservative is good, which begs the question.

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