\n<\/p>\n
A poster, produced in the United States, urging citizens to buy Liberty Bonds to support the allied … [+]<\/span> cause and help end World War I, circa 1917. (Photo by FPG\/Hulton Archive\/Getty Images)<\/span><\/p>\n <\/fbs-accordion>Getty Images<\/small><\/figcaption><\/figure>\n American lawyers whose tort classes used one or another edition of the old William Prosser casebook<\/a> will recall an archaic Kansas statute, apparently apocryphal<\/a>, that Professor Prosser noted for tongue-in-cheek pedagogical purposes. This statute was said to have required<\/a>, of the conductors of any two trains that approached one another from opposite directions, that each was to halt his or her train and wait for the other to pass. The pedagogical point here, of course, had to do with what we\u2019re to do in response to a statute that cannot actually have been meant to prescribe or proscribe what it seems to prescribe or proscribe \u2013 since presumably no legislature would ever seriously intend, for example, that the railways be clogged by immobile trains all putatively waiting for one another to pass.<\/p>\n \n ADVERTISEMENT<\/span> As it happens, lawyers and courts over literal centuries have developed widely-used means<\/a> of dealing with conundrums like that raised by the proverbial Kansas statute. Conundrums do regularly arise, after all, even if not always as comically as in the train story. Massive bodies of law like any U.S. State\u2019s statute book or the U.S. Code grow organically over time, such that later-enacted legislation can easily come into conflict with earlier-enacted legislation, sometimes in ways that escape notice by newly legislating legislators who haven\u2019t memorized decades\u2019 or centuries\u2019 worth of past legislation. When that happens, neither our States nor our Republic can afford simply to cease all action \u2013 like those two Kansas trains! \u2013 while waiting for new legislators to go back and harmonize all new enactments with all prior laws.<\/p>\n Law codes aren\u2019t Euclid\u2019s <\/a>Elements<\/em><\/a> or Newton\u2019s <\/a>Principia<\/em><\/a>, after all. They aren\u2019t formal systems whose axioms aspire to full theoretic completeness and internal consistency once and for all. They are practical instruments we use to address public challenges and coordinate interacting private activities publicly, and hence regularly expand and amend to respond to new circumstances. Sometimes we do the latter via new legislation, and sometimes instead we use what the lawyers call \u2018canons of interpretation.\u2019 It is through these latter that we handle ambiguous or conflicted statutes like the proverbial Kansan one between sessions of legislative address.<\/p>\n At least three<\/a> and in fact probably four such canons, I think, offer straightforward legal means by which President Biden and Treasury Secretary Yellen can simply ignore a stunt that\u2019s now brewing in Congress. I refer to the latest Republican attempt at terrorist bargaining over a putative U.S. \u2018debt ceiling.\u2019 Biden and Yellen, I claim, can simply ignore the would-be hostage-taker this time, leaving the ball in their<\/em> \u2018court\u2019 to hail Treasury into our<\/em> Courts and then watch the Supreme<\/em> Court annul it. Unless President Biden actually wants House Republicans to pretend to \u2018take us to the brink,\u2019 then \u2013 letting them thereby commit political suicide as their predecessors did back in 1995, 2011, and 2013 \u2013 he should simply announce that the \u2018debt ceiling\u2019 just \u2018isn\u2019t a thing\u2019 and instruct Janet Yellen to disregard it.<\/p>\n \n ADVERTISEMENT<\/span> What are<\/em> these canons that I claim President Biden can cite? They are actually quite simple and, again, altogether familiar to lawyers both inside and outside the White House and Congress. The first is what\u2019s called the \u2018later in time\u2019 rule<\/a> of statutory construction. The idea here, common-sensibly enough, is that where two legislative enactments appear to conflict, the later enactment will be read as implicitly repealing the earlier one \u2013 at least as applied in any manner that yields conflict. The applicability of this canon to the latest \u2018debt ceiling\u2019 imbroglio is straight-forward\u2026<\/p>\n Since enactment of the Congressional Budget and Impoundment Control Act of 1974<\/a>, Congress has had ultimate control over the federal budget process, treating as merely advisory the President\u2019s proposed budget each year. The \u2018debt ceiling\u2019 regime, by contrast, stems from the old Liberty Bond Act of 1917<\/a>, passed by Congress as a means both of (a) conferring more budgetary discretion on the President in funding the U.S.\u2019s First World War Effort, while also (b) imposing some minimal degree of control over the President\u2019s use of that discretion during and immediately after the War.<\/p>\n That the \u2018debt ceiling\u2019 regime was never intended to apply to present circumstances, especially after 1974, of course is revealed by the fact that it wasn\u2019t fought over<\/a> by White Houses and Congress during the decades following 1917 \u2026 until opportunistic politicians beginning with Newt Gingrich<\/a> in 1995 rediscovered it in the U.S. Code and decided to try their hands at employing it for stunt-performing purposes like shutting down the government. Be that as it may, the important point right now is that both (a) the 1974 budget regime trumps the 1917 budget regime, and (b) the current budget trumps any putative \u2018debt ceiling\u2019 imposed after that budget became law.<\/p>\n \n ADVERTISEMENT<\/span> The President should therefore just say that the last putative ceiling was implicitly repealed by the current budget, then note while at it that this also accords with Section 4 of the 14<\/a>th<\/sup> Amendment to the U.S. Constitution<\/a>, more on which below, ratified by the former Confederate States as a condition on readmission to the Union. That provision prohibits questioning of the U.S. national debt, which compliance with any putative \u2018debt ceiling\u2019 imposed after debts are already incurred would amount to.<\/p>\n How about those other canons of statutory interpretation to which I alluded? Well these, as it happens, nicely complement the first. Start with the \u2018absurd result\u2019 canon<\/a>. Pursuant to this one, a law that on one interpretation yields a result that cannot possibly have been rationally intended, while on another interpretation yields a result that could indeed rationally have been intended, must be read in keeping with the latter, rationally intendable interpretation. If, instead, there is literally no possible rational interpretation, the putative \u2018law\u2019 in question is treated as a nullity.<\/p>\n The absurd result canon of course offered means of dealing with the apocryphal Kansas train statute with which I opened. But it also carries over straightforwardly to the debt ceiling non-issue, in a manner that complements the later-in-time rule. For it is simply impossible<\/a> to view Congress as having required both that the federal government issue Treasury securities pursuant to the latest budget, and not to borrow as much as required by that budget owing to earlier, putatively \u2018limiting\u2019 legislation. We cannot, in other words, rationally interpret Congress as having done with fiscal legislation what the apocryphal Kansas legislature was said to have done with the aforementioned railway legislation. We must, then, instead view the most recent budget as having implicitly repealed any prior \u2018debt ceiling\u2019 legislation that would render compliance with the budget impossible.<\/p>\n \n ADVERTISEMENT<\/span> A third canon-like norm of statutory construction in effect treats Constitutional conflict itself<\/em> as a form of \u2018absurd result\u2019 to be averted when interpretively possible. I refer to the \u2018Constitutional avoidance\u2019 doctrine<\/a>, pursuant to which a plausible statutory interpretation that avoids raising a Constitutional problem is to be preferred to one that does not avoid such a conflict. In the case of the \u2018debt ceiling,\u2019 the potential Constitutional conflict is just the one I alluded to earlier. Section 4 of the Constitution\u2019s 14th<\/sup> Amendment prohibits impugning the national debt of the U.S. \u2013 something that Treasury Secretaries since our very first, Alexander Hamilton<\/a>, have understood to be crucial to the integrity, stability, and indeed long-term survival of our republic.<\/p>\n But (ironically named) \u2018Republican\u2019 gamesmanship with the old Liberty Bond regime of 1917, pursued with a view to undermining confidence in the solvency of those U.S. sovereign debt instruments that are the bedrock of both the U.S. and the world financial systems<\/a>, amounts to as dramatic a direct assault on the full faith and credit of the U.S. as can be imagined. Any interpretation of the debt ceiling regime that looks to threaten default, then, must be rejected in view of its raising a Constitutional conflict. It must instead be interpreted as the later-in-time rule and the absurd result canon discussed above suggest.<\/p>\n A final canon of statutory construction that President Biden and Secretary Yellen might find helpful under present circumstances is known as the \u2018specific trumps the general<\/a>\u2019 rule. Here the idea is that if a general prescription or proscription made by a legislature appears to conflict with a more specific proscription or prescription made by the legislature, the more general provision is to be read as implicitly including an exception for the specific provision. (A \u2018no sidewalk littering\u2019 ordinance, for example, will be read as compatible with another ordinance requiring that people salt their sidewalks when they are icy.)<\/p>\n \n ADVERTISEMENT<\/span> Here again the canon in question enjoys straightforward application to present circumstances. Anybody who\u2019s read or tried to read an annual federal budget<\/a> know there are literally thousands of quite specific spending, taxing, and borrowing mandates laid out by Congress and signed into law by the President. The so-called \u2018debt ceiling,\u2019 by contrast, says nothing directly about any of these thousands of budget line-items. Instead it speaks quite as generally as can be imagined, referring solely to an aggregate Treasury issuance amount starting with 1917\u2019s First World War Liberty Bond issuance. The last-enacted budget \u2013 which, again, is the law<\/em> \u2013 must accordingly be viewed as implicitly repealing any \u2018ceiling\u2019 legislation interpreted as conflicting with it.<\/p>\n Where does this leave us? I think it\u2019s pretty straight-forward\u2026<\/p>\n If President Biden, like Presidents Clinton and Obama before him, wishes to give would-be financial hostage-takers in Congress more rope to hang themselves with, he can of course play up the present pseudo-conflict, say that he \u2018will not negotiate with terrorists\u2019 or \u2018cut Social Security or national defense,\u2019 and enjoy yet another public backlash against Republican House clown-shows<\/a>. If, on the other hand, the President decides that it is long since time to pull the plug on this farce so the nation can address real problems<\/a>, he should simply inform Congressional Republicans that there is no debt ceiling apart from the budget that they themselves have enacted, then watch them either drop their latest hijack attempt or sue him and be told the same thing by the courts.<\/p>\n<\/div>\n\n A poster, produced in the United States, urging citizens to buy Liberty Bonds to support the allied … [+] cause and help end World War I, circa 1917. (Photo by FPG\/Hulton Archive\/Getty Images) Getty Images American lawyers whose tort classes used one or another edition of the old William Prosser casebook will recall an archaic …<\/p>\n","protected":false},"author":1,"featured_media":44339,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[161],"tags":[],"_links":{"self":[{"href":"http:\/\/www.brandon.ddtest.info\/multisite-test\/wp-json\/wp\/v2\/posts\/44338"}],"collection":[{"href":"http:\/\/www.brandon.ddtest.info\/multisite-test\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.brandon.ddtest.info\/multisite-test\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.brandon.ddtest.info\/multisite-test\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/www.brandon.ddtest.info\/multisite-test\/wp-json\/wp\/v2\/comments?post=44338"}],"version-history":[{"count":0,"href":"http:\/\/www.brandon.ddtest.info\/multisite-test\/wp-json\/wp\/v2\/posts\/44338\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"http:\/\/www.brandon.ddtest.info\/multisite-test\/wp-json\/wp\/v2\/media\/44339"}],"wp:attachment":[{"href":"http:\/\/www.brandon.ddtest.info\/multisite-test\/wp-json\/wp\/v2\/media?parent=44338"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.brandon.ddtest.info\/multisite-test\/wp-json\/wp\/v2\/categories?post=44338"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.brandon.ddtest.info\/multisite-test\/wp-json\/wp\/v2\/tags?post=44338"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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