July 30, 2011

THE NICE THING ABOUT HAVING TO PREDICT HOW AN ORIGINALIST WOULD RULE...:

How Would the Supreme Court Rule on Obama Raising the Debt Ceiling Himself? (Jeffrey Rosen, July 29, 2011, New Republic)

In addition to their concerns about legal standing, the conservative justices have also, in other cases, said that the courts should refuse to hear cases that raise "political questions"--in other words, cases that raise the possibility of "embarrassment from multifarious pronouncements" by the president, Congress, and the Supreme Court on the same legal issue. Nevertheless, Bush v. Gore showed that the conservative justices can abandon their longstanding devotion to construing standing requirements narrowly and the "political question" doctrine broadly when their political passions are high. So let's imagine, for the sake of argument, that the Roberts Court agreed to hear the case of Obama v. Boehner and decide it on the merits. How would the justices rule?

It seems a safe bet that all four liberal justices would rule for Obama. There's a strong argument that Congress's refusal to raise the debt ceiling falls within the spirit, if not the letter, of the paradigm case that the framers of the Fourteenth Amendment were concerned about: the efforts of former Southern rebels who had been newly elected to Congress effectively to overthrow the government by repudiating the Union debt and assuming the Southern debt. All four liberal Justices are committed to a vision of "living constitutionalism" that interprets the historical evidence broadly, and they would be supported in their judgment by the Perry decision. Moreover, at least two of the liberal justices--Elena Kagan and Stephen Breyer--have supported broad judicial deference to the president's ability to control the administrative state through regulations and unilateral action. And none of the liberals on the Court tends to be overly textualist when construing Congress's power.

What about the conservative justices? Here the divisions in the conservative ranks might become relevant. There are three distinct strains of legal conservatives on the Court: the tea party conservative, Clarence Thomas, the libertarian conservative, Anthony Kennedy, and the pro-executive power conservatives, John Roberts, Samuel Alito, and Antonin Scalia. Of these five justices, Thomas is the only one whose judicial philosophy might lead him to side with Congress over Obama. As someone who believes that Congressional power over the purse should be construed strictly, Thomas might conclude that Article I gives Congress, and not the president, the power "to borrow money on the credit of the United States"--a power that it has exercised by establishing a debt ceiling.


...is that it forces analysts to concede what the Constitution actually says.

Posted by Orrin Judd at July 30, 2011 6:47 PM
  
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