Archives for posts with tag: appropriations

The face amount of obligations issued under this chapter and the face amount of obligations whose principal and interest are guaranteed by the United States Government (except guaranteed obligations held by the Secretary of the Treasury) may not be more than $14,294,000,000,000, outstanding at one time, subject to changes periodically made in that amount as provided by law through the congressional budget process described in Rule XLIX [1] of the Rules of the House of Representatives or as provided by section 3101A or otherwise.

31 U.S.C. § 3101(b)[1]

[OK, this is Larry and I’m back again to discuss yet another way our government might fall apart. You’re familiar, no doubt with what happens when Congress fails to appropriate money to fund one or more government activities. People have to go home. It was decided way back in the Carter Administration[2] that government employees who went to work when there were no appropriations, but weren’t “essential” to protect life or property, quite likely were committing a criminal act. What’s the crime? Why, violating the “Anti-Deficiency Act,[3]” i.e., the statute that prohibits federal employees from obligating the government to spend money when they don’t have the authority to do so. That’s what “appropriations” are: the authority to financially obligate the government.

You see, when federal employees go to work they’re automatically entitled to be paid for their time. So just by showing up they obligate the government to pay them, even when the government has no authority – no appropriations -to do so. Well, couldn’t an employee offer to work for free for a day or two, just to keep things running? No, says our government; federal employees have no authority to waive their right to be paid.[4] So they have to stay home, unless they protect life or property.

So when was that last a problem? No doubt you remember: It was 4 years ago, back when we faced a “fiscal cliff.” The “cliff” was that there were no appropriations for a time to support some government operations, and some government folks had to stay home. You’ll be happy to know that we don’t have the same situation this month. Appropriations are in place, for the most part[5]; but now we have a different problem. The problem is, when the bills come due, we [the United States] may not have the cash to pay them.]

Burgeoning Debt

How could that be? Well, because the U.S. runs a deficit every year; while it collects lots of taxes and has other revenues, it doesn’t collect enough to pay all the bills. The U.S. funds its yearly deficit by borrowing on the Treasury market. Unfortunately Congress has limited the total amount the U.S. can borrow; you can find that in the quote that begins this piece; and, once again, we’re approaching the ceiling.[6] By the way, the current ceiling isn’t $14.3 trillion; it’s higher, due to subsequent adjustments. The Treasury keeps track of these sorts of things.[7]

So what is Congress to do? Raise it again? And if so, will there ever be a point at which we can stop doing that?[8] What happens if eventually there’s just too much debt out there? When will we know that’s the case?

That’s what the argument is about. The issue was kicked over to the “Government Accountability Office” back in 2010 which, of course, duly issued a report. The GAO’s basic opinion was that the debt limit doesn’t restrict Congress’ ability to authorize spending at any level. Instead, it restricts the Treasury’s ability to pay the inevitable bills.[9] That is, it creates a series of crises followed by successive increases in the ceiling. “Meanwhile,” GAO said, its “long-term simulations show that absent policy changes, federal debt will increase continually over the next several decades.”[10]

Debt Default

So here we are, approaching the ceiling again. Perhaps it’s time to start thinking about the unthinkable. What happens if the U.S. simply doesn’t pay all of its bills? Well, that’s not a new idea. The Treasury is adamantly opposed to that kind of thing. It says: “Failing to increase the debt limit would have catastrophic economic consequences. It would cause the government to default on its legal obligations – an unprecedented event in American history. That would precipitate another financial crisis and threaten the jobs and savings of everyday Americans – putting the United States right back in a deep economic hole, just as the country is recovering from the 2008 recession.”[11]

That’s the current position of the Trump Administration, but it’s not very much different from that of its predecessors. Why do all these people reach the same conclusion? Well, at bottom it’s because they’re convinced that, if the U.S. defaults an any debt payments, of any type, that ultimately would reflect on our national credit rating – which currently is very good – causing it to be downgraded, and thereby raise the interest rate we might have to pay for future borrowings.

That wouldn’t be a problem, I suppose, if we ran a budget surplus; but we don’t; we need to borrow lots every year; and rising interest rates will simply add to the amount we borrow. I don’t know if that would lead to “another financial crisis;” it’s said that we’ve never defaulted before, so who really knows? But rising interest rates can’t be a good thing for any debtor who has to go back to his [or her] lenders.

Prioritize Payments?

So are there other options? Well, Congress thought of some. There’s the notion, for example, that perhaps we ought to stick with the current debt limit, and simply prioritize our payments according to what’s important to us. Like the middle-class person strapped for cash, we might skip the electric bill for a month and pay the car loan, or vice versa. In truth a proposal sort of like this passed the House a couple of years ago[12]. [As near as I can tell, it never made it through the Senate.] It basically exempted from the debt ceiling all principle and interest payments due on bonds (a) held by the public, or by (b) the Social Security Trust Funds. All other payments would be curtailed.[13]

The bill is interesting – especially to someone on Social Security – but all such attempts to prioritize debt payments were [and apparently are] opposed by the Treasury. In May of 2011 it said: “Adopting a policy that payments to investors should take precedence over other U.S. legal obligations would merely be default by another name, since the world would recognize it as a failure by the United States to stand behind its commitments.”[14] No doubt the same could be said about an attempt to give preference to payments under Social Security.

Coin More Money

Or perhaps Congress already has resolved the problem a different way. Four years ago we pointed out that, in addition to appropriating funds and incurring debt, Congress has the power to coin money. And, according to The Washington Post, Congress may have given one bureaucrat the power to solve our problem with the debt limit.[15]

It seems that the Treasury Secretary has authority “notwithstanding any other provision of law,” to “mint and issue platinum coins in such quantity and of such variety as the Secretary determines to be appropriate.”[16] So, problem solved: All the Treasury has to do is mint up a few such coins in the $ 1 trillion denomination, deposit them wherever it keeps valuables (perhaps in Fort Knox[17]), and offset that amount from our outstanding debt. Presto! Federal net debt lowered well below the statutory ceiling.

We’ve said this before, by the way, but not seriously. Other countries have tried to print money to get out of a fix, but haven’t had very good results.[18] No doubt we’d have the same experience if we did the same thing.

Conclusion

Sometimes I wonder if, centuries from now, future archeologists, combing through the rubble of the Great American Empire, will stop to wonder what happened, why that Great Thing eventually collapsed. Will they find we had a deadly plague, or a series of them; or a great famine, due to global warming; or a series of violent, destructive wars? Or will it be something much simpler than that. Will they find, perhaps, that we failed because we had an accounting problem, and just couldn’t control our money?

I have no idea. What do you think?

 

 

 

[1] This language appears in Title 31, Money and Finance, Subchapter III, Financial  Management, Chapter 31, Public Debt. The official online version of this part of the U.S. Code is available from the Government Publishing Office at https://www.gpo.gov/fdsys/pkg/USCODE-2010-title31/pdf/USCODE-2010-title31-subtitleIII.pdf    If you would rather try an unofficial, but reliable version, try the Cornell Law School, at https://www.law.cornell.edu/uscode/text/31/3101

[2] James Earl Carter was President of these United States from January, 1977 through January, 1981. See the Wikipedia entry at https://en.wikipedia.org/wiki/Jimmy_Carter  . That’s also when the Iranians threw out their Shah and went with the theocracy they have today. Some say the current government of Iran doesn’t like us because we supported the Shah, and sold him lots of weapons, and perhaps helped him gain power in the first place.  This blog is not about that.

[3] For a non-technical discussion, see Time, Nicks, The Man Who Invented the Government Shutdown (Oct. 09, 2013), available at http://swampland.time.com/2013/10/09/the-man-who-created-the-government-shutdown/

[4] Id. We’re looking for a copy of the old Civiletti opinion. If we find it, we’ll publish it in a later blog.

[5] Actually, that’s what I think, but I haven’t researched the matter, so I’m not offering an opinion as to whether there are appropriations currently in place to cover all government functions, or whether they are adequate for their untended purposes. That’s not what we’re discussing today.

[6] See  GAO 11-203, Debt Limit, Delays Create Debt Management Challenges and Increase Uncertainty in the Treasury Market (February 11, 2011), available at http://www.gao.gov/products/GAO-11-203 . This will be cited as “GAO -11-203 at __.”

[7] See Treasury, Debt Limit, at https://www.treasury.gov/initiatives/Pages/debtlimit.aspx ; Treasury, Monthly Statement of The Public Debt of the United States (March 31, 2017), at https://www.treasurydirect.gov/govt/reports/pd/mspd/2017/opds032017.pdf . Today the authorized debt limit, for publicly held securities and intergovernmental securities, is close to $20 trillion. The limit on publicly held debt remains at around $14.4 trillion.

[8] See GAO -11-203 at What GAO Found:The debt limit does not control or limit the ability of the federal government to run deficits or incur obligations. Rather, it is a limit on the ability to pay obligations already incurred.”

[9] See GAO-11-203 at p. 1: “The debt limit does not restrict Congress’ ability to enact spending and revenue legislation that affect the level of debt or otherwise constrain fiscal policy; it restricts the Department of the Treasury’s … authority to borrow to finance the decisions enacted by the Congress and the President.”

[10] Id.

[11] See U.S. Treasury, Debt Limit, Myth v. Fact, available at https://www.treasury.gov/initiatives/Documents/Debt%20Limit%20Myth%20v%20Fact%20FINAL.pdf

[12] See House Report No. 113-48, Full Faith and Credit Act, available at https://www.congress.gov/congressional-report/113th-congress/house-report/48/1

[13] Id. at p. 4: “The provision provides that in the event the debt of the United States Government reaches the statutory limit, the Treasury Secretary shall issue debt to the extent necessary to pay principal and interest on certain obligations as defined. Obligations for which debt shall be issued are limited to those obligations held by the public or the Social Security Trust Funds. Obligations issued pursuant to this authority are exempt from the statutory debt limit. Section 2 also requires a weekly report from the Treasury Secretary if authority under subsection 2(a) is exercised that accounts for obligations due and amounts issued.”

[14] See n. 11.

[15]See The Washington Post, Wonkblog, Matthews, Michael Castle: Unsuspecting godfather of the $1 trillion coin solution (2013/01/04), at  http://www.washingtonpost.com/blogs/wonkblog/wp/2013/01/04/michael-castle-unsuspecting-godfather-of-the-1-trillion-coin-solution/?wpisrc=nl_showdown

[16] Actually, I wasn’t able to verify this precise quote, but I found something similar at 31 U.S.C. §5112(k): “The Secretary may mint and issue platinum bullion coins and proof platinum coins in accordance with such specifications, designs, varieties, quantities, denominations, and inscriptions as the Secretary, in the Secretary’s discretion, may prescribe from time to time.” You can find 31 U.S.C. §5112 at https://www.gpo.gov/fdsys/pkg/USCODE-2011-title31/pdf/USCODE-2011-title31-subtitleIV-chap51-subchapII-sec5112.pdf

[17] For more about the Treasury’s bullion depository at Fort Knox, go to Wikipedia and search “United States Bullion Depository,” or simply click here: http://en.wikipedia.org/wiki/United_States_Bullion_Depository

[18] See CNN World, Zimbabwe to print first $100 trillion note (January 16, 2009), at http://articles.cnn.com/2009-01-16/world/zimbawe.currency_1_zimbabwe-dollar-south-african-rand-dollar-note?_s=PM:WORLD   See also the blog of 11/12/2010, The Wages of Hyperinflation, at http://elementalzoo.typepad.com/elemental-zoo/2010/11/index.html . That one deals with hyperinflation in Weimar Germany.

In friendship false, implacable in hate:

Resolved to ruin or to rule the state.

 John Dryden[1]

[This is G. I think we’ll leave the Dryden quote up for another week. It seems to best suit America’s current situation. At this writing we’re in Day 14 of the Government shutdown. Democrats and Republicans are at an impasse[2] about whether, and on what terms our Government should be funded for this fiscal year, or any part of it. At the same time, we seem to be approaching yet another fiscal cliff.

Even if the Government had appropriations for this year, those aren’t really money. An appropriation only gives the Government authority to spend money for specified purposes, over a specified time, and up to a specified amount[3]. It doesn’t create money or cash or anything spendable. The Government gets its money from us (in taxes and other receipts), or by borrowing or printing it.[4]

Typically when the Government doesn’t have enough cash on hand to pay current obligations, it borrows to cover the shortfall, usually by issuing relatively short-term securities. But there is a ceiling on the total amount the Treasury can borrow[5] and – Guess what? – Treasury will reach it sometime this month. Current estimates are that if the ceiling isn’t raised by October 17[6], Treasury will run out of borrowing authority. Thereafter, the U.S. will be on a pay-out-of-current-revenues-only basis, and most likely will have cash problems by November 1.[7]

Conservatives, of course, see this as yet another opportunity to rein in Government spending. Their basic position is that they won’t vote for anything to raise the debt limit unless they get material concessions on the spending side, i.e. cuts in the social safety net, the Affordable Care Act and other programs Conservatives hate. Democrats don’t seem to be much inclined to agree, so it looks like our Government will have to continue on through October/ November with no new spending authorized for existing programs, and no new borrowing permitted for the bills as they come in. Just a couple of months ago this was unthinkable.

So what are the consequences? I’m not sure, and we don’t do economic forecasts here at Elemental Zoo Two[8]; but perhaps we can shed some dim light on what the Government might do if the unthinkable happens. I’ve asked Larry to take a look, and tell us whatever he can.]

The Trillion Dollar Coin

Thanks, G. First let me talk briefly about printing money. The Bureau of Engraving and Printing does that[9], but I’m not sure how BEP’s activity relates to the money supply, which is controlled principally by the Federal Reserve. Nor do I fully understand the role of the Congress, which our Constitution says has the power to “coin money and regulate the value thereof.”[10]

Nevertheless, there is an interesting quirk in current law that, on its face, allows the Treasury to mint, at the discretion of the Secretary, commemorative platinum coins of any denomination.[11] If it’s in the law, Congress must have permitted it, so that should take care of any constitutional objection. Back in January we suggested somewhat facetiously that the Treasury ought to issue one or two $1 trillion platinum coins, deposit them somewhere, and use them to pay off the outstanding national debt as it matures.[12] That way we could get below the debt ceiling without making any changes to it.

Well, I don’t intend to explore that any further right now. After all, we were doing satire back then, and not making a serious proposal. Nevertheless, given the current political situation, the ‘big coin’ solution might begin to look better and better as we stumble through October. But more about that later.

But let’s move on to the issue of the day, which is, what does the Executive Branch do when there are bills to be paid, and not enough cash on hand to pay them all? Let’s start with the things we sort of know, and move on to the less knowable ones later.

Public Debt and the 14th Amendment

We do know that Section 4 of the 14th Amendment to our Constitution says “The validity of the public debt of the United States, authorized by law … shall not be questioned.[13]” While some have argued this restriction applies only to debts incurred in the Civil War, the Supreme Court has held otherwise.[14] Actually we wrote a blog about that earlier this year, and pointed out that the Social Security Trust Fund also holds a lot of federal paper, which is public debt even though it’s not sold to investors.[15]

Does that mean that the debt limit adopted by Congress violates the 14th Amendment, because – in the current situation at least – it may prevent the Government from paying (i) interest on its debts, and (ii) principal as well when the debt matures? Good question! Congress hasn’t declared the federal debt securities invalid, or void, or anything like that. It’s just made it impossible for the Government to pay on some of them in accordance with their terms, i.e., on time and in the full amounts due.

Or has it? Most of the time, I would guess, there’s plenty of cash in the federal coffers to pay principal and interest on the federal debt. That’s probably the case even if we include payments due from the Social Security Trust Funds, which also are secured by federal debt instruments.[16] But, of course, the problem is that our Government has lots of other creditors. There’s military and civilian payroll to be met, payments to be made under federal contracts for goods and services provided, facility leases, grants and so forth, and, of course, payments promised under the numerous other programs bundled under the social safety net.

So why can’t the Government just prioritize its payments, make those required under the 14th Amendment, and stiff the rest of the creditors if necessary? That would allow Conservatives to realize their two most important policy goals: to maintain a military strong enough to intervene in conflicts around the world, and especially in the Middle East; and to force the American people off the dole, and back into healthy self-reliance.

[Oops! Larry, I thought we agreed we’d stick to the technical part of this debate, and avoid the politics!]

Right, I’ll leave the politics to the contestants. In September the Secretary of the Treasury wrote Speaker Boehner, sharply criticizing House efforts to prioritize Government payments:

The House of Representatives recently passed legislation that includes an ill-advised provision to prioritize payments, which would not protect the full faith and credit of the United States. Any plan to prioritize some payments over others is simply default by another name. The United States should never have to choose, for example, whether to pay Social Security to seniors, pay benefits to our veterans, or make payments to state and local jurisdictions and health care providers under Medicare and Medicaid. There is no way of knowing the damage any prioritization plan would have on our economy and financial markets. It would represent an irresponsible retreat from a core American value: We are a nation that honors all of its commitments.[17]

Note the language here. The United States should “never have to choose” between programs when it pays its debts; it should pay everything it owes.

Later the spin doctors took over and said, well, the Government shouldn’t have to choose and as a practical matter, it can’t, at least in the short term. Treasury’s financial systems, i.e. computers, aren’t set up to distinguish between types of payments. The vouchers come in, are certified, and the payments go out. The Treasury makes 80 million payments a month.[18] Currently there’s no good way to choose between them.

And, in any case, missing non-debt payments could trigger a recession, while missing debt payments could trigger a credit crisis.[19]

Conclusion

So where do I come out on all of this? Frankly, I don’t see any near-term agreement on the debt limit, or on FY 2014 appropriations.  I think the Government will blunder on down the road for a while, require its essential employees to go to work, miss payroll for them because of lack of appropriations and, of course, lack of cash due to the debt limit, skip lots of other payments that keep the economy afloat, default on the occasional debt payment, and stumble into a new recession or worse. That’s the ideal case for people who want to ruin the state, and then rule it, if they think they can ride to power after the crash.

But you didn’t ask for my political or economic opinions; you wanted a legal forecast. Well, defaults on our part, really in any payments, no doubt will spawn a blizzard of litigation. You can count on that. And, if the U.S. economy deteriorates badly because of the current impasse, the bond market implodes, interest rates spike, unemployment rises, etc. then serious people, including politicians, may take another look at the trillion dollar coin and the 14th Amendment as pointing the way out.  Why? Because, if the President can’t get new legislation out of the Congress in a crisis, he’ll have to work with whatever law there is to help restore the balance. For example,

  • He could resurrect the ‘big coin’ solution, that is, order the Treasury to (i) issue some high value (i.e., trillion dollar) platinum coins, (ii) deposit them at the Federal Reserve, and (iii) use them to redeem federal debt on its books. Or,
  • He could simply declare, perhaps by Executive Order, that all payments legitimately owed by the Government are ‘public debts’ within the meaning of the 14th Amendment, and any law that prevents them from being made ‘questions’  that debt and, therefore, violates the 14th Amendment.

Or he could do both. Of course, somebody would sue, most likely lots of somebodies, but with luck the litigation could take years to resolve. I make no predictions about how it would come out. But the delay certainly would give the country more time to address its underlying financial problems, hopefully not in the midst of a violent recession

You see, you asked me to think about the unthinkable. So I did.

[Yes I did, and you certainly did. Larry, thanks for all the hard work. Perhaps you ought to take a vacation until November 1. I promise not to forward your hate mail.

Next week hopefully we’ll talk about something else. Perhaps something less controversial, like new developments at the NSA? Perhaps.]


[1] This is John Dryden, the English poet, who lived from 1631 to 1700. See The Oxford Dictionary of Quotations (Oxford, 2004) at John Dryden, p. 287, n.2. Henceforth, the book will be cited as ODQ at __. If you want a biography of Dryden, of course you can find one in Wikipedia. Just go to http://en.wikipedia.org/wiki/John_Dryden

[2] Now here’s something up-to-date, that is emblematic of the problem. See Slate Politics, Weigel, Operation: Blame the Liberals: Tea Party conservatives occupy the National Mall to blame everybody else for the government shutdown (October 14, 2013) at   http://www.slate.com/articles/news_and_politics/politics/2013/10/glenn_beck_sarah_palin_and_tea_party_republicans_clean_up_the_mall_conservative.html

[3] See GAO, Principles of Federal Appropriations Law (3rd Edition), Vol. 1 (January, 2004), at p. 2-5: An appropriation is “[a]uthority given to federal agencies to incur obligations and to make payments from Treasury for specified purposes.” You can find the whole series of books at http://www.gao.gov/products/GAO-04-261SP . Also the Government employee who tries to obligate the Government without an appropriation may commit a crime. See Anti Deficiency Act, 31 U.S.C. §§1341, 1349, 1350, 1351 (2006). See also 41 U.S.C. §11 (2006), prohibiting any contractual arrangement of the government “unless the same is authorized by law or is under an appropriation adequate to its fulfillment.”

[4] If you want a good discussion of the process, see Congressional Research Service, Levit, Brass, Nicola & Nuschler, Reaching the Debt Limit: Background and Potential Effects on Government Operations (September 13, 2013).

[5] It’s specified in Title 31 of the U. S. Code, Subtitle III, Financial Management, Chapter 31, Public Debt at 31 U.S.C. §3101(b). But that part of the Code usually is out of date. So, if you want the most current information, we’re betting that the Treasury still is the right place to find it. Go to Financial Management Service, A bureau of the United States Department of the Treasury, at http://www.fms.treas.gov/bulletin/index.html ; then click on Federal Debt and check out Table FD-6.

[6] Actually, the Treasury said that by then it will have run out of “legal and prudent” measures to keep the country under the borrowing limit. You can find the Treasury notice to Congress at http://www.treasury.gov/connect/blog/Pages/Secretary-Lew-Sends-Debt-Limit-Letter-to-Congress-10-1-2013.aspx See also CNN Money, Sahadi, Debt ceiling deadline: Stop fixating on October 17 (October 10, 2013) at http://money.cnn.com/2013/10/10/news/economy/debt-ceiling-default/index.html  We might stagger on a little longer with cash on hand and incoming receipts until some big bills hit.

[7] Id. See EconoMonitor, Kahn, Debt-Ceiling Deadlines: What’s So Special About November 1? (October 9, 2013) at http://www.economonitor.com/blog/2013/10/debt-ceiling-deadlines-whats-so-special-about-november-1/#sthash.ZqXen6s3.dpuf

[8] But the Treasury does. Take a look at Department of the Treasury, The Potential Macroeconomic Effect of Debt Ceiling Brinkmanship (October 2013), available as a pdf download at http://www.treasury.gov/connect/blog/Pages/Report-on-Macroeconomic-Effect-of-Debt-Ceiling-Brinkmanship.aspx

[9] The official website for the Bureau is at http://moneyfactory.gov/

[10] See U.S. Constitution, Article I, Sec. 8. “The Congress shall have power to lay and collect Taxes … to pay the Debts and provide for the common Defence and general Welfare of the United States …To borrow Money on the Credit of the United States…To coin Money, regulate the Value thereof…To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States….” This is a highly edited version of Section 8. As usual, we prefer the transcription of the Constitution (and its Amendments) maintained by the National Archives. You can find it at: http://www.archives.gov/exhibits/charters/constitution.html

[11] See 31 U.S.C. §5112(k): “The Secretary [of the Treasury] may mint and issue platinum bullion coins and proof platinum coins in accordance with such specifications, designs, varieties, quantities, denominations, and inscriptions as the Secretary, in the Secretary’s discretion, may prescribe from time to time.”

[12] See the Elemental Zoo blog of 1/06/2013, More Cliffs Approaching? at http://elementalzoo.typepad.com/elemental-zoo/

[13] See U.S. Constitution, Amendment 14, Sec. 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. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.”  See note 10 for the source.

[14] See Perry v. United States, 294 U.S. 330 (1935). If you want to see the original, go to your nearest Law School or courthouse library, and look it up there. If you want to pay for an online copy, there are plenty of services who will provide one. If you want to see one for free, go to Justicia.com at http://supreme.justia.com/cases/federal/us/294/330/case.html

[15] See the Elemental Zoo blog of 01/12/2013, Notes on the 14th Amendment and the Public Debt, at http://elementalzoo.typepad.com/elemental-zoo/

[16] We pointed this out in January, in the blog referenced in note 14. There are two trust funds: Old-Age and Survivors Insurance (OASI) and Disability Insurance (DI); collectively they’re called the OASDI funds. There’s an interesting discussion of the trust funds in Wikipedia. If you want to see it, go to the Wikipedia website and search “Social Security Trust Fund”, or simply click here: http://en.wikipedia.org/wiki/Social_Security_Trust_Fund.

[17] See Letter from Jacob J. Lew, Secretary of the Treasury, to John A. Boehner, Speaker of the House (September 25, 2013), available at http://www.treasury.gov/connect/blog/Pages/Secretary-Lew-Sends-Debt-Limit-Letter-To-Congress-9-25.aspx

[18] For an early expression of this view, see Huff Post Politics, Paul N. Van de Water, ‘Debt Prioritization’ Is Simply Default by Another Name (09/19/2013) at http://www.huffingtonpost.com/paul-n-van-de-water/debt-prioritization-is-si_b_3957246.html

[19] See Reuters, White House: Debt prioritization would trigger legal battles (October 11, 2013) at http://www.reuters.com/article/2013/10/11/us-usa-fiscal-sperling-idUSBRE99A0PD20131011

In friendship false, implacable in hate:

Resolved to ruin or to rule the state.

 John Dryden[1]

[This is G. As of this writing, we are now in day 8 of the government shutdown. No new appropriations still equal no new funds for federal programs and no work for many federal employees. There’s a lot of social stress, but so far only minimal signs of chaos. Veterans are scuffling with guards while trying to see the Vietnam Memorial[2]; one woman was killed attempting to run barricades around the White House and the Capitol[3]; and another person burned himself to death on the Mall.[4] And, in case you didn’t hear, yesterday there was a fatal explosion on the DC subway,[5]and Friday truckers are planning to descend on DC and clog the beltway, to pressure the police to detain “accessories to treason.[6]” By that apparently they mean Representatives and Senators.

Will there be more? Yes. Will DC be like Saigon in the end stages of the Vietnam War? Probably not. Currently we have no hostile foreign invaders on American soil. Will we hear about new stuff when it happens? Yes, most likely. After all, this is the decade of the social media.

In case you didn’t notice, Larry really didn’t want to write last week’s blog. Nevertheless, he made some important points, one of them that not every political disagreement should be resolved by the Supreme Court. Sometimes the contending parties ought to let the voters decide. And guess what? If you read the tealeaves, you may find that some members of the Court agree. Consider, for example, remarks made by Justice Anthony Kennedy in California just last week.

Let’s start with the context. He was attending the formal dedication of a federal law library in Sacramento and at one point took questions from reporters. One of them asked, did he think “the court was deciding too many issues that [could] be decided by Congress?” His answer? “Yes,” and that’s a problem.

I think it’s a serious problem. A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say … And I think it’s of tremendous importance for our political system to show the rest of the world — and we have to show ourselves first — that democracy works because we can reach agreement on a principle[d] basis.”.[7]

Justice Kennedy often is seen as a “swing vote” between liberals and conservatives on the Court, so his views are always interesting; but does he represent a consensus on this? Only time will tell. But frankly, if I were a betting person, I would bet against anyone who argues that the Court is eager (or even willing) to involve itself in the current mess on the Hill.

That being said, it’s time to move on to Part 2 of this blog. This is the part that Larry actually wanted to write, so let’s let him do it.]

Thanks, G. I was as dumbfounded as anyone when the Government shut down, and – like everybody – looked for analogies to help me understand. Perhaps something from labor law? Is the shutdown like a labor-management blowup, where negotiations fail and management “locks out” the workers to force concessions? It’s a nice idea, but it doesn’t pan out.

With strikes and lockouts, both sides have financial skin in the game. Without workers, a company can’t produce goods or services to sell, so revenues (and profits) suffer. That’s bad for management. If labor doesn’t work, then workers don’t get paid. That’s bad for labor. So, not to put too fine a point on it, work stoppages automatically pressure both sides to reach some sort of a compromise. The pressure is direct and financial.

That’s not true with a Government shutdown. When Congress starves the Government of funds, only federal employees have to go home. Our Senators and Representatives are exempted, in that they establish their own compensation by law and are unlikely to vote to suspend it.[8] Also, the President’s compensation, and that of all federal judges, may not be reduced.[9] So there you go; only the ordinary  people who depend on the Government one way or another are hurt.

Serves them right? I’m not going there. The point is that the legislators who create the mess aren’t directly affected by it. There are indirect effects, of course, which tend to manifest themselves as perturbations in voter sentiment, so I’m sure the pollsters are pretty busy right now. But as we all know, polling is not an exact science, and polls sometimes can be very wrong. Every Republican I talked to last year, up to the week before the election, seemed convinced that Mitt Romney was going to win. Of course he didn’t.

So I expect that each side’s pollsters are chanting their usual incantations, burning the required incense, and telling their clients that they are winning the debate. For, you see pollsters are mostly codependents in politics; their real job is to reassure the combatants, not to bring bad news.

Right now each side is blaming the other for the current impasse. Their mantra is, if you would only agree with me, then we would have a deal. And, of course, in one sense that’s correct. The Democrats control the Senate, and the Republicans control the House. There can be no legislation unless both agree on something.

[Larry, I’m going to interrupt. Suppose you were walking down a dark alley one night, and were stopped by a menacing stranger who said (i) he is a cannibal, and (ii) he’s going to kill and eat you. Would you fight, or just stand there? Suppose he said that this time he would settle for just your right arm. Would you agree to the compromise? If not, what would you say when he complained you weren’t negotiating in good faith? Would you admit he has a point?]

There he goes again. G likes to make points by exaggerating consequences[10], but this time he’s gone too far. I’m morally certain that no Conservative really wants to eat a Democrat. All I’m saying is that both sides are convinced they’re right, and one of them will be wrong. The loser will find out when there’s a public backlash against dismantling our Government.  The winner may find out as well. Today lots of people seem to think both political parties are at fault.[11]

And why would any politician want to create a situation where everybody is discredited? Aren’t politicians natural compromisers, who want the approval of voters, not their hatred? Well, not all of them; there’s that second variety John Dryden described three centuries ago: You know, the ones “[r]esolved to ruin or to rule the state.” We seem to have a lot of that sort running for office these days.


[1] This is John Dryden, the English poet, who lived from 1631 to 1700. See The Oxford Dictionary of Quotations (Oxford, 2004) at John Dryden, p. 287, n.2. Henceforth, the book will be cited as ODQ at __. If you want a biography of Dryden, of course you can find one in Wikipedia. Just go to http://en.wikipedia.org/wiki/John_Dryden

[2] See LI, Jacobson, Battle of the Barrycades – Vets storm Vietnam Memorial, U.S Park Police called in (October 5, 2013) at http://legalinsurrection.com/2013/10/battle-of-the-barrycades-vets-storm-vietnam-memorial-u-s-park-police-called-in/

[3] See The Washington Post, Herman, O’Keefe & Fahrenthold, Unarmed Driver is Fatally Shot (Friday, October 4, 2013) at p. A1, A11; WKYT, AP, Police: Woman killed in DC chase was delusional (October 6, 2013) at http://www.wkyt.com/home/headlines/Police-Woman-killed-in-DC-chase-was-delusional-226485691.html

[4] See Big News Network, Mall self-immolator still to be identified (October 6, 2013) at http://www.bignewsnetwork.com/index.php/sid/217553779/scat/c08dd24cec417021/ht/Mall-self-immolator-still-to-be-identified

[5] See The Washington Post, Hedgpeth & Lazo, Fatal accident disrupts repairs to the Red Line (Monday, October 7, 2013) at p. A1, A7.

[6] See US News, Nelson, ‘Truckers for the Constitution’ Plan to Slow D.C. Beltway, Arrest Congressmen (October 7, 2013) at http://www.usnews.com/news/articles/2013/10/07/truckers-for-the-constitution-plan-to-slow-dc-beltway-arrest-congressmen

[7] See CBS, Local DC, Justice Kennedy: ‘Serious Problem’ Supreme Court Deciding Too Many Issues That Can Be Decided By Congress (March 7, 2013) at http://washington.cbslocal.com/2013/03/07/justice-kennedy-serious-problem-supreme-court-deciding-too-many-issues-that-can-be-decided-by-congress/

[8] See U.S. Constitution, Article I, Sec. 6, cl. 1: “The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.” You can get a reliable transcript of this and other key documents from the National Archives, at http://www.archives.gov/exhibits/charters/

[9] See U.S. Constitution, Article II, Sec.1, cl. 7 (the President); Article III, Sec. 1 (federal judges)

[10] It’s called the reductio ad absurdum, For a short discussion of this kind of argument, see Wikipedia at http://en.wikipedia.org/wiki/Reductio_ad_absurdum

[11] See Gallup Politics, Swift, Americans See Current Shutdown as More Serious Than in ’95, Views of president, Republican, Democratic leaders widely negative (October 4, 2013) at http://www.gallup.com/poll/165260/americans-current-shutdown-serious.aspx

The layman’s constitutional view is that what he likes is constitutional and that which he doesn’t like is unconstitutional.

Hugo Black[1]

[This is Larry. Why am I quoting the late Justice Hugo Black?[2] I’ll explain later. This blog is about the Hastert Rule, an obscure bit of procedure in the House of Representatives that supposedly allows the Speaker to block any appropriation he doesn’t like from ever coming to a vote. There’s a lot of uproar about that, but most of it is phony: i.e., a typical example of the misstatements, confusion and bogus constitutional arguments that the media and our politicians use to divert us from the real issues of the day. And why would they do that? Probably to fill air time, and look busy, while in truth nothing is happening. After all, the Government is shut down.

Anyway, I didn’t want to write about the phony stuff because I think it’s a waste of time; but apparently others around here don’t agree, and they’re giving me a headache. They think some of it is important. So I’ll make one more attempt to lift the fog in their minds and convince them otherwise. Breathe deeply, everybody, and focus your third eye. Clarity (hopefully) will be your reward.]

If you believe Wikipedia, the Hastert Rule is an “informal governing principle” Republican Speakers of the House use to maintain their leadership positions.[3] If Republicans are the majority of House members, they elect the Speaker. A Republican Speaker, to stay in the good graces of the membership, agrees that no legislation will go to the floor of the House unless a majority of House Republicans support it. So today, for example, if a majority of House Republicans want to shut down the Government by denying it funds, all they need to do is tell the Speaker to hold back on appropriations. No new appropriations equals no new spending authority, and workers go home.

So why do Republicans call this a “rule?” It sounds more like a working arrangement between consenting adults, designed for mutual advantage. Well, perhaps by calling it a rule Republicans think they can escape some of the opprobrium for shutting down the Government. After all, they’re only following the rules; people are supposed to do that kind of thing, aren’t they?

But then, of course, there’s Denny Hastert, the Republican Speaker who supposedly authored this “rule” in 2006, during a news conference. He says he never did such a thing. “Generally speaking,” he says, “I needed to have a majority of my majority, at least half of my conference [to introduce legislation]. This wasn’t a rule. I was speaking philosophically at the time…The Hastert Rule is kind of a misnomer.[4]

Fine, that should take care of that. There really is no “rule,” so we can stop talking about one. Are we done? Not really. The Left has a different take on the matter. House Republicans aren’t putting forward a clean bill, i.e., an appropriation without restrictions, and voting on it; and that’s probably unconstitutional. Why? Because a clean bill most likely would pass, even though a majority of Republicans might not like it. So the Democrats, currently the minority party in the House, have a Constitutional right to have their legislation voted on.

Sorry? How does that work? What Constitutional principle is at work here? Is it some new and novel interpretation of the due process clauses of the 5th and 14th Amendments? Or do we have simply an example of Justice Hugo Black’s theorem in action? That the Left deems the House’s failure to act to be unconstitutional because it [the Left] doesn’t like the results?

So far nobody seems to have told the Congress about any of this. The Constitution says “[e]ach House [of Congress] may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.”[5] Both the House and the Senate have very extensive rule books to control their respective legislative processes. My guess is that neither has changed all that much in the last two centuries. The Senate, for example, still keeps Thomas Jefferson’s Manual of Parliamentary Practice around for handy reference[6].

In the House, after committee hearings, reports, etc. proposed legislation finds its way on to one Calendar or another for action.[7] But even so, the Speaker controls when or if action will be taken. “The scheduling of legislation for House floor action is the fundamental prerogative of the Speaker. Individual Representatives cannot easily circumvent, influence, or reverse leadership decisions about which measures should come to the floor.”[8]

Will the courts look over the Speaker’s shoulder when he does that sort of thing? I very much doubt it.

You see, the people who wrote our Constitution were very careful to draw some lines between the three coequal branches of our Government. With respect to legislation, each House of Congress determines “the Rules of its Proceedings;” no other branch has a vote. In general, the federal courts do not hear cases which deal directly with issues that the Constitution makes the sole responsibility of another branch.[9] So most likely the courts wouldn’t entertain a challenge to today’s voting procedures in the House of Representatives, or the Speaker’s failure to bring up legislation for a vote that is pleasing to Democrats. Those matters simply are not justiciable, because they belong to the House alone.

Anyway, that’s my opinion, and that’s why I think it was a waste of time to even write this blog, and bitterly resent being bludgeoned into doing so. Instead we should have been talking about the real politics in action in the shutdown, how shutdown tactics might be adapted in the future, the role of delusion and wish-fulfillment in the process, and things of that ilk. Hopefully we’ll get around to that important stuff next time.


[1] Hugo Black was a Supreme Court Justice during the Warren Court. This version is from Brainy Quote at http://www.brainyquote.com/quotes/quotes/h/hugoblack110604.html Normally I try to refer people to a better source than this, because Brainy Quote doesn’t even pretend to tell us where its material comes from. But Brainy Quote is accessible, which counts for something, and it seems to be more or less correct in the language. If you want to fuss around for a bit, you can find the original in an article written about an interview Justice Black gave to CBS back in 1968. See The Supreme Court Historical Society, Black, Hugo Black: A Memorial Portrait (1982, 2008), p. 120 – 159, available at http://www.supremecourthistory.org/wp-content/themes/supremecourthistory/inc/schs_publications-1982.pdf “But they [most Americans] think they know it [the Constitution]. And their idea is all the same. You can trace it to the same thing, doesn’t make a difference what it is, what their experience is, or why they’re mad at the Court. It’s all because each one of them believes that the Constitution prohibits that which they think should be prohibited, and it permits that which they think should be permitted.”  See Memorial Portrait at p. 148.

[2] If you want a bare bones biography of Hugo Black, you can get it from the Federal Judicial Center at http://www.fjc.gov/servlet/nGetInfo?jid=181&cid=0&ctype=sc&instate=na If you want to know more, take a look at the Wikipedia write-up, at http://en.wikipedia.org/wiki/Hugo_Black For his judicial philosophy, read Black, The Bill of Rights, a piece he  did for Vol. 35 of the NYU Law Journal (April, 1960); it’s reprinted at http://www.criminology.fsu.edu/faculty/gertz/hugoblack.htm#N_2_

[3] There’s a serviceable explanation in Wikipedia. You can find at http://en.wikipedia.org/wiki/Hastert_Rule

[4] See The Daily Beast, Clift, Denny Hastert Disses the ‘Hastert Rule’: It ‘Never Really Existed’ (October 3, 2013) (Italics added) at http://www.thedailybeast.com/articles/2013/10/03/denny-hastert-disses-the-hastert-rule-it-never-really-existed.html

[5] See U.S. Constitution, Art. I, Sec. 5, cl. 2. You can get a reliable transcript of this and other key documents from the National Archives, at http://www.archives.gov/exhibits/charters/

[6] Today that’s Senate Document 103-8. You too can have a copy. Just download it from http://www.senate.gov/artandhistory/history/resources/pdf/SDoc103-8.pdf Or you can buy it online. As usual, there are lots of people out there who are willing to sell you information that’s otherwise available for free.

[7] That’s pursuant to Rule 13 of the House Rules. Want to read Rule 13 or any of the others? Good luck. You can find the current rules in House Res. 5, 113th Cong., 1st Sess. (2013), available at http://docs.house.gov/billsthisweek/20121231/BILLS-113-HRes5ih_xml.pdf

[8] See Congressional Research Service, Schneider, House and Senate Rules of Procedure: A Comparison (updated 2008), p. CRS-3, available at http://www.senate.gov/reference/resources/pdf/RL30945.pdf

[9] See Baker v. Carr, 369 U.S. 186 (1962). See also Nixon v. United States, 506 U.S. 224 (1993).

 

[This is G. I’ve been away for a while, but I’m back for the week. This morning I woke up, read the papers, and learned that the Republicans truly hate the Affordable Care Act.  They’re hell bent on rescinding it, no matter what, and even though they’re a minority party. And if they don’t do it this time, they’ll try again, and again, and again until they succeed.

Somehow this all seems familiar. Oh, yes, I remember! Way back in the summer of 2012, the Republicans had just lost their effort to overturn Obama Care in the courts, were enraged, and vowed to continue the fight in the Presidential campaign. Then they lost the election, rather badly as it turned out, but still weren’t discouraged. They would fight even harder, this time in the Congress.

Of course, they were left with a minority in the Senate, and a fractured majority in the House, so they really couldn’t pass laws; but they could stop them. That should be enough. How? Well, the Government needs money, and if the Congress doesn’t appropriate it the Government, or large parts of it, will have to shut down. And if that doesn’t work, they’ll try again when the time comes to raise the limit on the National Debt sometime in October. Obama Care is clearly evil and has to go. Extreme measures are justified!

You could say, I suppose, that they’re downright Churchillian in this regard. They’re going to fight on the beaches, in the landing grounds, on the fields, in the streets, etc., until they prevail.[1]Of course, Winston Churchill was faced with the prospect of a Nazi invasion of the British homeland during the Battle of Britain. Today’s Republicans are resisting a Government program to expand healthcare in the U.S.

The two things don’t seem to be moral equivalents, but nevertheless factions in the Republican party are willing to go all the way to resist any expansion of national healthcare. Why? Well, they say, it’s all tied up with their view of American Exceptionalism, a philosophical (or perhaps economic) view that I missed in college. But it was quite popular, or so I am told, in the high Ivy League; so, of course, only the best people are pushing it today.

Of course, it could be that all this talk about our exceptionalism could simply be a mask for a deeper, and more profound political concern. And, as fate would have it, we blogged on that back in July of last year. Rather than paraphrase our speculation, perhaps it’s best to simply reprint the piece here[2]. (It’s certainly easier.) Consider this an experiment; let us know if you like, or hate, the idea of reprints from the old blog

July 20, 2012[3]

My name is Sam Hall, it is Sam Hall.

My name is Sam Hall, and I hate you one   and all.

Yes I hate you one and all, God damn your   eyes.

American Folk Song[4]

Well, finally! On June 28 the Supreme Court issued its much-awaited   decision on the Affordable Care Act – aka, Obama Care – much to the consternation of the Right and the   bewilderment of many Liberals. The drama hypnotized many for hours, and   preoccupied the folks on AM Talk Radio for days. But comic relief came from   the so-called Mainstream Media, and by that I mean the media outlets that had   the resources to station a commentator and a camera on the courthouse steps.   Those folks, ever-ready to pounce and report the news, were the first to   receive the Court’s opinions.

For those of you who don’t know, the actual decision is styled National Federation of Independent   Business v. Sebelius.[5]   The Court spent the better part of three days listening to arguments on   health care, and produced a series of closely-argued opinions that, in total,   exceed 190 pages. Even the Syllabus, a kind of précis of the opinion, ran on   for more than five pages of fine print. Sometimes you can find out what   happened in a case by reading the Syllabus; but not always. In this case you   had to read into page 4 to see that key parts of Obama Care had been upheld.

Apparently not everybody in the media read that far before they   spoke. Early on two networks reported that Obama Care had been struck down. Not true. The others were   silent, probably because the adults in that group were still reading; and   eventually gave the correct answer.

So which is better? To wait a bit and get the facts straight? Or to   talk early and often, and correct mistakes only if someone makes you do it?   I’m not so sure that the producers of these shows value the ‘true facts” of a matter so much that they are willing to put up with dead air. Better to fill   the air with something, even if it   has to be changed, or retracted, at a later date.

Does this mean that we can’t trust the media? Perhaps. And if so,I’m talking about all media. People   knew this even back in the 19th Century. “Believe nothing of what you hear, and only half of what you see.[6]”   I don’t think we’ve improved much since then. In fact, with the recent   development of picture altering software, perhaps these days we should trust our sight even less than our ancestors trusted theirs.

The Republicans were on the case as soon as they realized what had happened. Mitt Romney’s Campaign proposed a new initiative: i.e., to exempt all states from complying with the current law, and to work with Congress to   repeal the whole thing.[7] The Campaign’s view is that Obama Care   is too expensive, will burden the states with needless regulation, and will “worsen the [health care] system’s existing problems.”

Why do they think that? Well, basically they seem to believe that government never can do anything right. That’s a popular view with AM Talk Radio and the Republican base, but it hardly stands as fact. After all, the federal government runs the military, provides medical services to veterans and others, protects us from terrorists, and so forth. The states and municipalities run the police forces, fire and EMS teams, maintain highways   and regulate utilities, etc. I don’t think Candidate Romney thinks any of these efforts are failures and should be discontinued. If he does, I’m sure he will make that known in due time.

Strictly speaking, there are no facts about Obama Care and its complex program for creating state insurance   markets. That part hasn’t been implemented and it’s not scheduled to be implemented for some time. So how does one criticize it without any documented failures? Only on the grounds of ideology, not fact.

Of course, none of this really matters to the people who truly hate Obama Care.

  • Some have disliked it from the beginning,   mostly because they think we have the best health care system in the world.   Why tamper with the best?
  • Others, especially on AM Talk Radio, say the   United States was founded as a nation of sturdy yeomen, and that we should   preserve our independence, work for health care, and pay for it. Don’t accept   health care from the Government! If you do we’ll lose American Exceptionalism![8] It’s our exceptionalism that allows us to go about the world, correcting injustice wherever we find it.
  • And what about the people who can’t afford to   pay for health care? Are they just supposed to die? You’ll hear dead silence   on that. In the past, the standard rejoinder would have been that any   tampering with the medical establishment, or the insurance industry, would be Marxist.

Do we really have the best health care system? Not if you look at the   facts. For instance, take a look at the average life span of people in this country. How do we stack up against other nations? We may not be at the top, but we should do pretty well, right? Wrong.

The Central Intelligence Agency tracks this kind of thing for about   220 countries, including the United States. The information is available to   the public.[9]   You probably didn’t know this, but we are number 50 on that list. That is, the citizens of 49 other countries enjoy longer lifespans than we do. These include Monaco, Japan, Singapore, Hong Kong, Australia, Italy, Canada, France, Spain, Sweden, Switzerland, Iceland, the Netherlands, New Zealand, Ireland, Norway, Germany and the United Kingdom.

So why do all of these countries do better? Well it could be, it just could be, that those particular countries have national health care plans that help their citizens to live longer. Check the list and see if you agree.[10]

What about American exceptionalism? After all, our exceptionalism is   our license to topple dictators and install democracy in their countries.That’s pretty important.   Shouldn’t we be willing to sacrifice health care to maintain such a lofty   position?  We’ll lose it if we keep Obama Care.

Come again? How does that work? If we abolish government health care at home, how does that encourage us to go to war abroad? And how does any of this relate to the morality of government healthcare?

After a little research we found that Israel, for example, has national healthcare; its operating principle seems to be that “[a]ll Israel   is responsible for one another.”[11] Assuming responsibility for others?! Are the Israelis weak for taking that position? Are they no longer exceptional because of it?

So, would we be better than the Israelis if we demolished Obama Care? We certainly would be   denying responsibility for some of our fellow citizens. And if that’s OK, why not move on to Medicare, Medicaid, Veteran’s health programs, and the like?   If we abolish those programs then we would be truly exceptional in the world   – but for what? Stupidity, perhaps?

OK, what about Marxism? Nobody really wants to be a Marxist these   days. Perhaps we should abolish Obama   Care – and the other government health programs – to avoid even the appearance of Marxism.

You know, not too long ago we blogged about Karl Marx, Frederick Engels, and their belief system[12] To them society was organized into two main classes: the rich (or   capitalists); and the people who worked for them (the proletariat).  Eventually the two classes would go to war   and the proletariat would win, principally because there were many more workers than rich people. After that the workers would take over, and society would gradually evolve into a single class. Marx and Engels saw this as a good thing.

My guess is that they would not approve of Obama Care. Instead, they would see it as a half measure,   designed to short-circuit or prevent class warfare and the victory of the   workers. So in today’s political climate they might well side with the media pundits of the Right: Destroy Obama Care root and branch.

For this reason Obama Care is most definitely not Marxist. So what about the Right; how would Marx see them? Possibly as “useful idiots,[13]”  i.e. as furthering Marxist goals by opposing Obama Care, and thereby encouraging class warfare.

Finally, let’s get to the real question. Why is the Right so adamant   about Obama Care? The reasons they give don’t seem to make much sense, so what’s really at play here? Actually, we wrote about this a couple of years ago.[14]   We were struck at the time by the general vagueness of the health care   debate. Nobody seemed to talk about specifics; instead all we had was   rhetoric and glittering generalities from both sides. The Democrats wanted to help the uninsured, and the Republicans wanted to save us from Marxism and/or Big Government.

Of course, there were a lot of healthcare proposals floating around   then. At one point the House had sent bill to the Senate; the Senate rewrote   it and sent it back; while the House continued to work on three other   proposals unrelated to the Senate rewrite. So where was a politician, or a   pundit to look for specifics? Well, Elemental Zoo had an answer for that.

In January of 2010 the Senate operated under rules that permitted a   minority to stall legislation by debate. Debate could be cut short only if 60% of the Senators voted for that. After the Senate passed its version of   healthcare, the Senate lost one of its leading proponents of the measure, Ted Kennedy. This left the Democrats with “only” a 59 vote majority, not enough   to move new or amended healthcare legislation. So the only legislation left   on the table was the Senate Bill, and we suggested the contending parties should examine that and debate it in detail. Perhaps they could reach agreement on some issues, and pass a better law.

Of course, nothing of the sort happened. The parties remained   stalemated and no compromises were made. Eventually the Democrats in the House accepted the Senate Bill and, after some procedural wrangling, both   houses succeeded in passing additional ‘reconciliation” legislation to make some relatively minor changes to it. If you’re confused by the process, stand in line.

So why didn’t the parties just work something out? Well, I think it   was because both sides agreed on one thing, a very big thing. The Conservatives thought that new legislation that expanded healthcare would be very   attractive to the newly covered, and that said newly covereds probably would   reward Democrats by voting for them in future elections. And the Democrats thought so too.[15]

So there we have it. The Conservatives are against Obama Care because they’re afraid it   will attract more voters to the Democrats. But they don’t say that. Instead   they carry on about Marxism, big government and so forth. But they’re really singing in Sam Hall’s choir. You know, they hate Obama Care because they hate it, they hate it, they hate it, and because the Democrats may get a political advantage from it, God damn their eyes.

What about your and my healthcare? Not an issue; go out and earn it!

[So there you have it; musings and reflections from the summer of 2012. Nothing seems to have changed since then, except, of course, that Vladimir Putin, President of Russia, recently entered the debate on American Exceptionalism.[16] He said, rather puckishly I thought, that it’s always dangerous to tell people they are exceptional.

Probably he was thinking about his own country’s experience with the Nazis in World War II. Ultimately we, the Russians, the British and a lot of other people had to put the Nazis down in a great bloody confrontation involving most of the world. The Nazis, Germans and others, were driven in large part by the mistaken belief that they were part of an Aryan race destined to rule everything. They were exceptional.

Of course, no one is saying that Americans are trying to do the same thing. After all, for the last 100 years or so our modus operandi has been to fight our wars, wherever they might be, and leave the area once the hard part is over; except, of course, we do leave expensive garrisons behind for very long periods after the fighting.

It’s not fair to compare our record to that of an expansionist empire, trying to expand its power and influence at the expense of others. For one thing, our military adventures generally are quite costly, and don’t pay for themselves. But we, or at least modern Conservatives, do have a tendency to preach to the world about how its various peoples and cultures ought to govern themselves. And what’s our advice? Why, that everybody should create a Western-style democracy and follow in our footsteps.

Interesting argument, but lately I don’t think it’s selling very well anywhere but in Washington, D.C. And wait until the Republicans defund Obama Care, and we tell the rest of the world that they, also, should give up their national programs. My guess is that no other country will do that. And what if the Republicans shut down our Government, or destroy our Government’s credit rating, simply to defund Obama Care? Will the world be impressed by that?

Or will we be a laughingstock?]


[1] See Oxford Dictionary of Quotations (6th edition) (Oxford, 2004) (hereinafter, ODQ at __) at Churchill, p. 221, n. 8: “…We shall fight on the beaches, we shall fight on the landing grounds, we shall fight on the fields and in the streets, we shall fight in the hills; we shall never surrender.”

[2] With a light edit, of course.

[3] See the blog of 07/20/2012, Health Care Again, at http://elementalzoo.typepad.com/elemental-zoo/page/4/

[4] This is quoted in Cohen, Curses, Hexes and Spells (Lippincott, 1974) at p. 84.

[5] 567 U.S. ___ (2012). The decision is currently available only as a slip opinion. You can get it –for a price- from one of the expensive legal services or you can download it for free from the Supreme Court’s web site. Go to http://www.supremecourt.gov/ and look under Recent Decisions. But be warned. The whole thing is over 190 pages, so you’re in for a long read once you get it.

[6] See ODQ at Proverbs, p. 615, no. 8.

[7] Where do I get this? From the Romney Campaign website. Go to http://www.mittromney.com/issues/health-care

[8] Don’t know what this is? Take a look at Wikipedia, which defines it this way: “American exceptionalism is the theory that the United States is different from other countries in that it has a specific world mission to spread liberty and democracy.” See http://en.wikipedia.org/wiki/American_exceptionalism

[12] See the blog of 04/25/2012, What Did Marx and Engels Really Say? at http://elementalzoo.typepad.com/elemental-zoo/2012/04/index.html  From time to time we refer to previous blogs. All of them are still available from Elemental Zoo. To get them you have to scroll down on the blog page until you find what you want. If you hit bottom on the page and still haven’t found what you are looking for, click on next to go to the next previous page, and repeat the process as necessary. Trust me; all the old posts are still available, although it may be a bit laborious to find the earlier ones.

[13] Actually the term “useful idiots” may be somewhat suspect. It’s popularly attributed to Vladimir Lenin, and means people who aren’t Marxists but support Marxist objectives. Brewer says that the phrase was not known in the former Soviet Union, and “may have been concocted by anti-Communists in the U.S.” See Rees, Brewer’s Famous Quotations (W&N, 2006) at Lenin (Vladimir Ilyich Ulyanov), p. 282, 283.

[14] See the blogs of 01/22/2010, Health Care and 01/29/2010, Health Care II, both at http://elementalzoo.typepad.com/elemental-zoo/2010/01/index.html

[15] See Krugman, The Conscience of a Liberal (Norton 2007, revised 2009). Krugman describes the political dynamics of the issue in Chapter 11.

[16] See, e.g., New York Times, Opinion, Putin, A Plea for Caution from Russia (September 11, 2013) at http://www.nytimes.com/2013/09/12/opinion/putin-plea-for-caution-from-russia-on-syria.html?smid=tw-nytimes&_r=1& ; see also Newsmax,  Burke, Putin Writes Op-Ed for NY Times: America Not ‘Exceptional’ (September 11, 2013) at http://www.newsmax.com/Newsfront/putin-times-op-ed/2013/09/11/id/525217