Disney Sues DeSantis

Taking down the happiest place on earth.

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The feud between the governor and the mouse has more nuance and legal curiosities than it might seem at first glance, and David and Sarah are here for it. But also:

-Is the debt ceiling “unconstitutional”?

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  1. Mrjsfisher

    Im befuddled on the reference to state nondelegation law. nondelegation Deals (normally) with the delegation of legislative power to a separate branch of government, not with delegation of governmental authority from a state government to a local government. If that were unconstitutional cities would be unconstitutional. What the what?

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    J. Hayes

    If anyone is interested, I was able to locate the entire opinion on the guy who chopped up his parents.... https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Majority%20Opinion%20-%20State%20of%20Tennessee%20v.%20Joel%20Michael%20Guy%2C%20Jr.%20-%20E2021-00560-CCA-R3-CD.pdf

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    Dougherbert

    I want to take a shot at analyzing Lawrence Tribe's argument that the 14th Amendment invalidates the debt ceiling. I hope the format of this isn't too hard to follow (it would be nice if indenting were possible here).

    This is an issue on which there is little if any caselaw, so we are almost entirely reasoning from the actual text of the Constitution, which I think is pretty clear. 

    Let's start with the basics, the relevant portions of the text of Sections 4 and 5 of the FourteenthAmendment. 

    "Section 4: 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...."

    "Section 5: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."

    A couple of things are immediately apparent from this language.

    First, there is nothing in this language the purports in any way to expand the power of the executive. Indeed, Section 5 explicitly states that it is “the Congress” that has the power to enforce the 14th Amendment.  

    Second, the “public debts” whose “validity … shall not be questioned,” are only those public debts “authorized by law.” And under the Constitution, a “law” comes into existence only when it is passed by Congress. A president cannot unilaterally enact a “law.” So if President Biden issued new bonds via executive order, it is questionable whether those bonds would be subject to being disavowed without running afoul of Section 4 of the Fourteenth Amendment.

    But it is not immediately apparent to me what it means when it says the “validity of the public debt … shall not be questioned.” In most contexts, I would take this to mean no more than that Congress cannot disavow debt that has already been issued. In the bankruptcy context, for example, there is a difference between a debtor’s failing to pay a debt that is acknowledged by the debtor to be due and a debtor’s questioning whether an alleged debt obligation is valid at all. At least on its face, Section 4 seems to be limited to the former, disavowal of a debt and would not encompass the non-payment of an acknowledged debt.

    I guess the argument is that if Congress fails to make money available to pay a pre-existing debt, that is “questioning” the debt, because the holders of the bonds won’t get their money on the schedule they were promised. As long as Congress promises to make the bondholders whole eventually (with payment of additional interest), I’m not at all sure that is “questioning” the “validity” of the debt.

    So, in a situation like the one we’re facing now, where Congress has authorized aggregate spending in an amount sufficient to fund repayments of all existing debts, but not in an amount sufficient to fund all existing programs without taking on additional debt beyond the debt ceiling, there are basically five ways to solve the problem: (1) Disavow the validity of bonds that have already been issued; (2) default on payment obligations on existing debt, but promise to pay it later, with interest for the delay; (3) raise taxes, (4) borrow additional money (by issuing new bonds), or (5) re-allocate the spending that has been authorized to prioritize payment of existing debt.

    Tribe’s argument is, in a nutshell, that solution #2 is required because it is “necessary”in order that the “debt” not be questioned. That just is not logically compelled.

    Option 1 – disavowal of existing debt – is clearly prohibited by Section 4 of the 14th Amendment.

    Option 2 –deferral of existing debt (i.e., default), coupled with an express recognition that the debt is valid, might or might not constitute “questioning the debt.”But for purposes of argument, let’s assume that it is does and would thus violate Section 4 of the 14th Amendment.

    Option 3 –raising taxes – runs directly afoul of the language of Section 8 of Article I: “The Congress shall have Power To lay and collect Taxes.”

    Option 4 – taking on new debt by issuing new bonds – also runs directly afoul of the language of Section 8 of Article I: “The Congress shall have Power … To Borrow Money on the credit of the United States.”

    Option 5 – re-allocating the spending that has been authorized by Congress to prioritize the repayment of existing debt and reducing other spending that Congress has authorized – is, I think, not contrary to the Constitution, although a contrary argument could be made.

    The contrary argument would be based on Train v.City of New York, 420 U.S. 35 (1974), in which the Supreme Court held that the president is constitutionally obligated to spend sums that have been appropriated by Congress.

    I think an argument based on Train would fail for two reasons.

    First, any funds that Congress has appropriated were appropriated subject to the existing law creating the debt limit. A suit arguing that the president is obligated to expend funds when those expenditures would themselves violate a law enacted byCongress (the debt ceiling) seems frivolous to me.

    Second, after the Supreme Court’s decision in Train, Congress enacted the 1974 Impoundment Control Act, 2 U.S.C. §§ 681-688. Portions of this act created a “one house veto,” which the Supreme Court subsequently declared unconstitutional, but Sections 684-687 of that Act remain in effect. These sections provide as follows: 

    "Section 684: Whenever the President, the Director of the Office of Management and Budget, the head of any department or agency of the United States, or any officer or employee of the United States proposes to defer any budget authority provided for a specific purpose or project, the President shall transmit to theHouse of Representatives and the Senate a special message specifying --  
    (1)the amount of the budget authority proposed to be deferred;  
    (2)any account, department, or establishment of the Government to which such budget authority is available for obligation, and the specific projects or governmental functions involved;
    (3)the period of time during which the budget authority is proposed to be deferred;  
    (4)the reasons for the proposed deferral, including any legal authority invoked to justify the proposed deferral;
     (5) to the maximum extent practicable, the estimated fiscal, economic, and budgetary effect of the proposed deferral; and
     (6)all facts, circumstances, and considerations relating to or bearing upon the proposed deferral and the decision to effect the proposed deferral, including an analysis of such facts, circumstances, and considerations in terms of their application to any legal authority, including specific elements of legal authority, invoked to justify such proposed deferral, and to the maximum extent practicable, the estimated effect of the proposed deferral upon the objects, purposes, and programs for which the budget authority is provided."

    "§ 687. Suits by Comptroller General. If, under this title, budget authority is required to be made available for obligation and such budget authority is not made available for obligation, the Comptroller General is hereby expressly empowered, through attorneys of his own selection, to bring a civil action in the United StatesDistrict Court for the District of Columbia to require such budget authority to be made available for obligation, and such court is hereby expressly empowered to enter in such civil action, against any department, agency, officer, or employee of the United States, any decree, judgment, or order which may be necessary or appropriate to make such budget authority available for obligation. No civil action shall be brought by the Comptroller General under this section until the expiration of 25 calendar days of continuous session of the Congress following the date on which an explanatory statement by the Comptroller General of the circumstances giving rise to the action contemplated has been filed with the Speaker of the House of Representatives and thePresident of the Senate."

    In short, the Impoundment Control Act specifically anticipates that the President may withhold spending that has been authorized by Congress so long as he or she notifies Congress of this decision and the reasons for the decision. The ComptrollerGeneral (a legislative branch official) is authorized to sue the President, after 25 days have passed, to force the expenditure of such funds.

    So, Tribe’s argument that “necessity” requires President Biden to ignore the debt ceiling and issue new debt, (1) ignores the express constitutional language forbidding this option, (2) ignores the existence of other arguably unconstitutional options, including allowing a default and unilaterally raising taxes, and, most important, (3) ignores the clearly constitutional option of notifying Congress pursuant to the ImpoundmentControl Act of 1974 of his intent to defer other spending that has been authorized so funds will be available to pay off existing debts.  

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  4. Sjrubert

    With respect to California's efforts to ban the AR-15, it is worth noting the immense effort gone to by citizens to comply with the law, I'll repeat, to comply with the law, while possessing what is essentially the same as the item the legislation intended to restrict. There is no more clear evidence of the intent to keep and bear these arms for lawful purposes than the efforts expended to ensure that the law was followed.

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  5. Jasonbentley38

    I see the difference between history and tradition as the difference between history that can assist in discerning the original public meaning vs. history since the passage of that part of the constitution.

    For example, in the Heller case, Scalia first turned to the text, then analyzed history that would further assist in determining what the Second Amendment meant as the time of ratification. His opinion then ended by discussing prior Second Amendment cases, such as U. S. v. Cruikshank and U.S. v. Miller. While a review of these cases is “history” in the normal sense of the word, this type of history couldn’t be used to illustrate what the Second Amendment meant at the time of ratification.

    I see “tradition” as providing a roadmap of what to do if the historical record at the time of ratification is messy. The original public meaning of the words should govern when they can be discerned. When they cannot, then historical evidence which post dates ratification (tradition) can be used, since there is insufficient evidence to determine the original public meaning at the time of ratification (history).

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    Dave T

    Very interesting. I am not a smart man, but I immediately saw the circular logic at play in the 4th amendment argument -- how did the writers not see it? Good thing we have Sarah and her pod-guest to help out.

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  7. Rodrubert

    I was intrigued by David's assertion that magazine bans are likely to be successful since there were no magazines at the writing of the Constitution. We could impact many societal ills by allowing the government to censor other technologies not available when the Constitution was written. We could start with radio, television and the internet, no? As to David's assertion that magazines did not exists, I suggest looking up the Puckle Gun. Here is a great youtube examination: https://www.youtube.com/watch?v=GPC7KiYDshw

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  8. Mmpietro

    I always take my red pill before I listen to Advisory Opinions. 😁

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  9. Kevren22

    I want to make an attempt at steel manning the text, history, and tradition test. I think the best version of the test isn’t thinking about the full definitions of each of the three words, but to understand the words as stand-ins for 3 different questions: 1. (Text) What does the text actually say? 2. (History) How did people understand the law/document at the time it was passed? 3. (Tradition) How has this law/document been interpreted and applied throughout history? This version of the test requires a narrowing of the definition of “history” but I do think that separating out questions 2 and 3 does have a legitimate benefit because they can conflict so often.

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  10. Chipwatkins

    Gettysburg was founded by my ancestor, James Gettys. The correct pronunciation is not "Getty's-burg," but "Gettys-burg."

    His grave marker is just inside the entrance to Evergreen Cemetery, on Cemetery Ridge.

    Thank you.

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    1. David S

      Are you saying it should be Gettiss-burg and not Getteys-burg or Getty's-burg? Removing the apostrophe is not changing how I would otherwise pronounce it.

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      1. Chipwatkins

        Yes.

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