Archives for posts with tag: Congress

[This is G. Sallust, and today I’m only doing the introduction, so relax. There will be no long sermons from me. I see in the news that our current President is auditioning lawyers and law firms to see which of them will represent him in the multitudinous investigations now sprouting inside the Beltway. Really, we need a scorecard to keep track of things.

  • Our loose-lipped and always indignant Congress wants to know whether our President is “too close” to the Russians[1]; their evidence of that is that he’s been seen talking to their emissaries in the White House, and even the Oval Office[2]; that he’s said it would be nice to “get along’ with them, if possible[3]; and that prior to the last election the Russians, allegedly, gave documents to WikiLeaks that were authentic, but embarrassing to Democrats.[4] (The Russians deny they were the source of the documents, and WikiLeaks agrees.[5])
  • In the meantime the FBI is interviewing senior members of the Trump entourage, about Russia[6], and DOJ has nominated a Special Prosecutor to do pretty much the same thing.[7]

Given all that, how should the President handle the legal traffic? Is he right to hire outside counsel, or should he rely on internal resources? Of course, DOJ is an investigator in these matters, so they can’t [and shouldn’t] defend the President at the same time. But the President also has an official counsel in the White House, with a staff, so should he use them as his advisers, defense counsel and the rest?

I’ve asked Larry, our resident legal consultant, for his views on the matter. He wants me to say that he’s retired; he’s not advising anybody in the White House, or anywhere else on these matters, or anything related to them. Like any other pundit, he’s merely offering opinions, but unlike most of them he’s basing his views on decided cases and the written record. So with that in mind, let’s hear from Larry!]

Thanks, G. I don’t care what anybody says, it’s good to have you back. How did that romance of yours go? … Oh, strike that! Sorry I asked!

The main advantage of talking to a lawyer is, when the criminal allegations start to fly, you can discuss them frankly with an experienced person, clarify the issues, and decide what to do. These kinds of discussions need to be privileged, i.e., protected from disclosure, otherwise you can’t have them at all. At one time Presidents thought they could shield discussions about sensitive internal matters simply by claiming executive privilege, but they lost that option for criminal matters when Richard Nixon was President. So now Presidents [and other government employees] can talk only to lawyers when the gumshoes call, and not just any lawyer. One who works for the government may be no help at all.

Executive Privilege

The granddaddy of cases about executive privilege and the White House is, of course, United States v. Nixon.[8] There was a special prosecutor in those days, appointed to look into events surrounding an attempted burglary of the DNC Headquarters in Washington, D.C. Various Nixon apparatchiks were indicted in connection with that and, once it became known that the President routinely taped conversations with his staff, including apparatchiks, the relevant tapes were subpoenaed as part of the investigation.

President Nixon resisted the subpoena on the theory that his tapes were protected by “absolute” executive privilege.  This was true, he said, because (i) the doctrine of separation of powers, en-grained in our Constitution, called for it, and (ii) the President needs “complete candor and objectivity from his advisers,” which he would not get if their conversations might be exposed in some investigation.[9]

The Supreme Court rejected both claims. “[N]either the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”[10]

The President’s need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.[11]

In short, the internal communications of presidents may be subpoenaed in a criminal investigation. [Communications involving “military, diplomatic, or sensitive national security secrets” might be exempted, but it’s not clear from the decision how that would work, because those kinds of documents were not in play in the case]. Once made available the papers, etc. would be reviewed in the usual manner and with appropriate safeguards.[12]

Attorney Client Privilege

So if you are a President, and there is a criminal inquiry going on in your operation, who can you talk to? Better yet, who can you talk to in confidence? How about the White House Counsel or some other government lawyer? Well, of course you can talk to anybody you want to. The question is, when the subpoenas begin to fly, who can [or must] protect your conversations from the other side?

Lawyers and their clients have something called attorney-client privilege which should do the job. Basically in most states the lawyer’s duty to keep secrets is defined very broadly.[13] It applies to all information related to the representation of the client. The lawyer must be discreet with the information regardless of whether the client has revealed it to others. And in most states the same standard applies to government and private sector lawyers.[14]

The District of Columbia seems to be different, at least on that last point. I guess we all remember the lengthy investigation of the Clintons back in the 1980s. A “Special Prosecutor” was appointed to investigate some financial dealings Mr. Clinton had in Arkansas before he became President; collectively they were nicknamed “Whitewater;” [15] but eventually the investigation spread to all manner of things, including Mr. Clinton’s alleged sexual proclivities and stains on a junior staffer’s dress. White House Counsel staff were scheduled for interviews, but the Deputy there, Bruce Lindsey, asserted attorney-client privilege and refused to cooperate. His refusal was taken to court, first to the trial court supervising the investigation and later, to the Court of Appeals for the D.C. Circuit. That particular bit of litigation did not turn out well for the Clintons or for those of us who think that the attorney-client privilege is a good thing.

The case is In re: Bruce Lindsey [Grand Jury Testimony].[16] The basic facts were that a Grand Jury was investigating alleged wrongdoing in the Executive Branch. In that situation, the court said, government lawyers are very different from those in private practice. Members of the Executive Branch, including attorneys, must “take Care that the Laws be faithfully executed.” That’s a Constitutional duty.[17] When crimes are being investigated “and especially offenses committed by those in Government, government attorneys stand in a far different position from members of the private bar.” The government lawyer’s duty “is not to defend clients against criminal charges and it is not to protect wrongdoers from public exposure.”[18] A lawyer in private practice has exactly that duty. The loyalties “of a government lawyer cannot and must not lie solely with his or her client agency.”[19] The loyalties of the private practitioner lie solely with the client.

So given that I guess we can conclude (i) when crimes are being investigated at an agency, (ii) government attorneys can’t invoke attorney-client privilege to withhold pertinent information from the investigators. There’s no such privilege available in that situation. However, there are other reasons why information might be withheld. It might be highly classified technical data, and withhold-able on that basis alone; or core information related to military, diplomatic or national security matters, legitimately subject to executive privilege; or who knows what? The holding of the case is simply that government attorneys can’t use attorney-client privilege to do the job.


So what’s a President to do when the investigators come a calling. Who does he talk to and what does he say? Well, the court had some ideas on that. It said:

Moreover, nothing prevents government officials who seek completely confidential communications with attorneys from consulting personal counsel. The President [Mr. Clinton] has retained several private lawyers and he is entitled to engage in the completely confidential communications with those lawyers befitting an attorney and a client in a private relationship.[20]

So there you go. If our current President wants or needs all of the advantages of dealing with a private attorney, and can afford it, he should hire one or teams of them, if necessary.[21] What’s my opinion? In the current environment, it would be irrational for him not to do so.

[1] See, e.g., the screed published by the American Bridge PAC, whatever that is, at Strictly speaking this isn’t a Congressional product but its emblematic of the kinds of things being said on the Hill.

[2] See The Washington Post, Rucker, et al., Inside the Oval Office with Trump and the Russians: Broad smiles and loose lips (May 16, 2017) at

[3] See The New York Times, Burns, Donald Trump Reaffirms Support for Warmer Relations With Putin (Aug. 1, 2016), at

[4] See, e.g., The Observer, Schindler, Wikileaks [sic, WikiLeaks] Dismantling of DNC Is Clear Attack by Putin On Clinton (07/25/16)  at

[5] See CNN, McKirdy, WikiLeaks’ Assange: Russia didn’t give us emails (January 4, 2017) at

[6] See CBS Los Angeles (video) Trump Son-In-Law under FBI Scrutiny (26 May 2017) at

[7] Robert Mueller is the Special Prosecutor. He now has an official spokesperson.  See Politico, Gerstein, Trump-Russia special prosecutor Mueller taps spokesman, (May 26, 2017) at

[8] See United States v. Nixon, 418 U.S. 683 (1974).

[9] Id. at 706.

[10] Id.

[11] Id.

[12] At that time, it would have been under Rule 17 of the Federal Rules of Criminal Procedure. Note that the Court did not address the question of what rules might apply to civil proceedings involving one or more private parties. That wasn’t an issue in the case.

[13] This is a paraphrase of the findings of someone who’s actually done the research. See Clark, Government Lawyers and Confidentiality Norms, 85 Wash. Univ. L. Rev. 1033. 1035 (2008): “In most states, a lawyer’s duty of confidentiality is defined very broadly and applies to all information relating to the representation of the client. The lawyer is required to be discreet with such information whether or not it could harm or embarrass a client, and whether or not the client has revealed the information to others. In most states, the professional confidentiality rule does not distinguish between government and private sector lawyers.”

[14] See Leong, Note, Attorney-Client Privilege in the Public Sector: A Survey of Government Attorneys, 20 Geo. J. Legal Ethics 163 (2007), at

[15] Rather than “Watergate.” We pundits really need our labels, don’t we?

[16] See In re: Bruce Lindsey [Grand Jury Testimony], 158 F.3d 1263 [D.C. Cir.], cert. denied, 525 U.S. 996 (1998). Here I need to apologize.  We have the correct citation for this case, but not the official report of the opinion. Also there doesn’t seem to be a way to get the official opinion without paying West Publishing or somebody like that for it. As you know, if possible we try to point our readers to free sources for the things we cite. So for the moment we’re going to rely on unofficial sources, i.e., the Washington Post for the original, redacted version, and the Justicia website for the later, more complete version. You can find the version published by the Post in 1998 at . We’ll call it the WAPO version. Page citations will be to that version unless otherwise noted. We’ll make appropriate changes once we access the official version. You can find the more complete, un-redacted version maintained by Justia at . That one doesn’t have page numbers, so it’s more difficult to cite.

[17] Citing Article II, §3 of the Constitution. The President takes an oath to do that, and so does every federal employee. See Article II, §1, clause 8; Article VI, clause 8.

[18] See WAPO version at p. 9 of 24

[19] See WAPO version at p. 10 of 24

[20] See WAPO version at p. 14 of 24.

[21] The following paragraph falls at the end of the un-redacted version of the majority [per curiam] opinion published by Justicia. There are no page numbers in this version!! The paragraph quoted appears just before commencement of the dissent: “If the President wishes to discuss matters jointly between his private counsel and his official counsel , he must do so cognizant of the differing responsibilities of the two counsel and tailor his communications appropriately; undoubtedly his counsel are alert to this need as well. Although his personal counsel remain fully protected by the absolute attorney-client privilege, a Deputy White House Counsel … may not assert an absolute privilege in the face of a grand jury subpoena, but only the more limited protection of executive privilege. Consequently, although the President in his personal capacity has at least some areas of common interest with the Office of the Presidency, and although there may thus be reason for official and personal counsel to confer, the overarching duties of Lindsay in his role as a government attorney prevent him from withholding information about possible criminal misconduct from the grand jury.”


The Congress shall have Power … To borrow Money on the credit of the United States; … To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States … [and] 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, or in any Department or Officer thereof.”

U.S. Constitution, Article I, Section 8[1]

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

U.S. Constitution, Article I, Section 10[2]

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, 10th Amendment[3]

[This is Larry, and we’re back to talk more about appropriations, money, debt and cash. Once again Elemental Zoo has me researching the law of things about which I know practically nothing, only this time it’s worse. I don’t know much about economics, either. Nevertheless, I will soldier on, but carefully, by breaking our subject into small pieces, and attempting to make sense of the parts. Hopefully when we’re done the sum of all of them also will make sense.

Last time we discussed federal appropriations – i.e., spending authority – and how our government is required to discontinue operations and send people home when it runs out of the authority to spend to keep things going. But we also noted that, even if our government has authority to continue operations, it may not be able to pay all of its bills. That’s because each year our government operates at a deficit; its revenues are less than expenditures, and it makes up the difference by borrowing from strangers. Unfortunately Congress has put a limit on the government’s total debt, so at some point it may run out of cash and not be able to borrow to make payments as they come due.

At that point I made a bad joke. I suggested that, since Congress had the authority to print money, it should just authorize the government to print a few trillion extra dollars, and tell President Trump to apply that to retiring a large part of the federal debt. All parties could agree that this was a “one-time” maneuver, not to be repeated, so investors shouldn’t worry. After all, they would get their money back. And by the way, Congress already may have authorized the Government to do this, by permitting the Secretary of the Treasury to mint bullion coins of unspecified denomination at his [or her] discretion[4]. Also there are historical precedents for issuing more money when needed, most notably in Weimar Germany[5], but also more recently in Zimbabwe[6] and today possibly in Venezuela.[7]

It’s a bad joke, but raises a good question, to wit: What role does our Congress have in making the physical dollars that you and I spend in our daily lives. Can Congress print more whenever it wants to?]

The Constitution

So what does Article 1, Section 8 of our Constitution say? The relevant parts are quoted above. Congress has the power to “coin” money and regulate the value thereof. The states do not. Article 1, Section 10 says the states can’t “coin” money, “emit” bills of credit, or make any “thing” except gold or silver coin something that can be tendered to satisfy a debt. States can’t make money at their own discretion; they have to use the stuff created by the feds.

So how about paper money? Who can make that? Obviously not the states, but how about Congress? Does the power to “coin” money include the power to print the paper kind? That question was raised, sort of, to the Supreme Court in the early 19th Century. The decision, an opinion authored by John Marshal, our first famous Chief Justice, is McCulloch v, Maryland.[8]

That case involved a central bank – the Second Bank of the United States – created by Congress to move money for the central government. Maryland challenged the constitutionality of the Bank, arguing that Congress had no specific authority to create such a thing, and therefore was barred from doing so by the 10th Amendment. Powers not delegated to the United States were reserved for the “States” or the “People.” And since the Bank wasn’t properly authorized, neither were its works. So said Maryland.

The Court saw it differently. There is no requirement that the Constitution specifically authorize a central bank. The power to raise revenue, and apply it to “national purposes” implied “the power [to convey] money from place to place, as the exigencies of the nation may require, and [to employ] the usual means of conveyance.”[9] In short, if the Government can coin, raise and spend money, it can create a bank if one is “appropriate” to help it do the job.[10] And if that bank needed to issue banknotes on behalf of the federal government, then so be it. The notes issued by the Second Bank weren’t directly in play in McCulloch v, Maryland, but the bank was upheld and, by implication, so was its currency.

I wouldn’t call that an iron-clad legal opinion; it’s more of an educated guess by an amateur; but there’s lots of our paper money out right now and nobody seems to mind. So I’m not losing any sleep over my conclusion.

Paper Money Today

How do we make paper money? Well, the actual printing is complex, in large part because of the security countermeasures governments have to use to foil counterfeiters, hackers and other bad people;[11] but the bureaucracy involved is not too bad. The Federal Bureau of Printing and Engraving [the BPE], an organization within the Department of the Treasury, does the actual work. It prints money – so-called Federal Reserve Notes – to be delivered to the Federal Reserve System, the current version of our central bank. “U.S. currency,” it says, “is used as a medium of exchange and store of value around the world.”[12] Currently there are “approximately $1.43 trillion worth of Federal Reserve notes in circulation.”[13]

These are big numbers, but what do they mean? Well, first that paper money is printed [and destroyed] on the order – or more likely the recommendation – of the Federal Reserve. At the end of the day, the Federal Reserve can’t order the Treasury to do anything.[14] But the Fed is responsible by law for supervising the issuance and retirement of [Federal Reserve] notes – our paper currency.[15] So as a bureaucratic matter I don’t see Treasury’s Bureau of Printing and Engraving turning down many requests from that source.

And how does the Federal Reserve determine how much paper money needs to circulate? Good question. [16] According to the Fed, it looks at “payments of currency to and receipts of currency from circulation and the number of unfit notes destroyed at the Reserve Banks.” Fed staff estimates demand for currency “based on monthly monitoring, forecasts of growth rates for payments of currency to circulation and receipts of currency from circulation, operational factors, and other policy considerations.” Historically, “more than 90 percent of the notes that the Board orders each year replace unfit currency that Reserve Banks receive from circulation.”[17]

There, isn’t that clear? What I get from it is that the Fed looks at the actual ebb and flow of U.S. currency in the world, then throws in “other policy considerations” when deciding how much more to print. Don’t be paranoid, folks, but when bureaucrats start talking about “policy considerations,” we just naturally want to ask more questions. That’s kind of an iron rule with this blog, no matter what the subject; in this case we have yet to find answers; but stay tuned. We haven’t given up.


At the end of the day our most excellent Congress has the final say about how much U.S. paper money circulates in the world. It’s Congress that has the power to “coin money;” granted it has created instrumentalities to help with that, the Federal Reserve and Treasury’s Bureau of Printing and Engraving, but they can be changed by legislation; the Constitution cannot. So “Watch the Skies!” – No, wait, that’s a different movie – “Watch your Congressperson!” to see if he or she begins to preach new or innovative solutions to our budget problems. Pay special attention if the magic solutions involve printing lots of greenbacks.[18] Otherwise, have a nice day.

[1] See U.S. Constitution, Article I, Section 8. We prefer to get the Constitution and the first 10 Amendments [the Bill of Rights] from the National Archives, at . You can find Amendments 11 – 27 at

[2] See U.S. Constitution, Article I, Section 10.

[3] See U.S. Constitution, Amendment X, available at

[4] See The Washington Post, Wonkblog, Matthews, Michael Castle: Unsuspecting godfather of the $1 trillion coin solution (2013/01/04), at . Actually, I wasn’t able to verify the precise quote given, 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

[5] See the blog of 11/12/2010, The Wages of Hyperinflation, at . That one deals with hyperinflation in Weimar Germany. See also Adam Smith, Paper Money (Summit, 1981) at Ch. 4, The Chilling Symbol: A Wheelbarrow Full of Money, p. 55 – 63.

[6] See CNN World, Zimbabwe to print first $100 trillion note (January 16, 2009), at

[7] See Los Angeles Times, Linthicum et al., Roiled by protests and soaring inflation, Venezuela is pushing out foreign companies (April 22, 2017), available at

[8] See McCulloch v, Maryland, 17 U.S. (4 Wheaton) 316 (1819). [According to the Supreme Court’s website, it was actually decided on March 6, 1819]. If you can’t find an official report, you can get an unofficial version from Justicia at .

[9] Id. at 407-408: “Although, among the enumerated powers of Government, we do not find the word “bank” or “incorporation,” we find the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation are intrusted [today, entrusted] to its Government. It can never be pretended that these vast powers draw after them others of inferior importance merely because they are inferior. Such an idea can never be advanced. But it may with great reason be contended that a Government [entrusted] with such ample powers, on the due execution of which the happiness and prosperity of the Nation so vitally depends, must also be [entrusted] with ample means for their execution. The power being given, it is the interest of the Nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution by withholding the most appropriate means.”

[10] The court noted that the decision might have been otherwise under the Articles of Confederation, the compact that preceded our Constitution, and earlier drafts of Article I, Section 8 also required all federal powers, even incidental or minor ones, to be expressly defined. But in the end, that’s not what the Constitution says. Instead, it authorizes Congress to enact all laws that are “necessary and proper” for carrying into execution its powers or any other powers vested in the Government. [That’s in Article I, Section 8]. “The result of the most careful and attentive consideration bestowed upon this clause is, that if it does not enlarge, it cannot be construed to restrain the powers of Congress, or to impair the rights of the legislature to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the government. If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting the right to legislate on that vast mass of incidental powers which must be involved in the constitution, if that instrument be not a splendid bauble.” Id. at 420 – 421.

[11] If you want to know more about how to print money, Wikipedia has an impressive introductory write-up at .

[12] See Department of the Treasury, Bureau of Engraving and Printing, at U.S. Currency,

[13] Id., citing the Federal Reserve Bank.

[14] See 12 U.S.C. §246: “Nothing in [the Fed’s enabling legislation] shall be construed as taking away any powers heretofore vested by law in the Secretary of the Treasury which relate to the supervision, management, and control of the Treasury Department and bureaus under such department, and wherever any power vested by this chapter in the Board of Governors of the Federal Reserve System or the Federal reserve agent appears to conflict with the powers of the Secretary of the Treasury, such powers shall be exercised subject to the supervision and control of the Secretary.”

[15] See 12 U.S.C. §248(d), Supervising and regulating issue and retirement of notes.

[16] To answer this we looked at the 102nd Annual Report of the Board of Governors of the Federal Reserve System (2015), which is the most recent one we could find. We’ll cite it as 102nd Annual Report at __. It’s available at .

[17] See 102nd Annual Report at p. 401, Currency Budget.

[18] I don’t want to be a pest, but do take a look at our blog of 7 years ago. See the blog of 11/12/2010, The Wages of Hyperinflation, at [Hyperinflation in Weimar Germany]. See also Adam Smith, Paper Money (Summit, 1981) at Ch. 4, The Chilling Symbol: A Wheelbarrow Full of Money, p. 55 – 63.

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.


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    If you would rather try an unofficial, but reliable version, try the Cornell Law School, at

[2] James Earl Carter was President of these United States from January, 1977 through January, 1981. See the Wikipedia entry at  . 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

[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 . This will be cited as “GAO -11-203 at __.”

[7] See Treasury, Debt Limit, at ; Treasury, Monthly Statement of The Public Debt of the United States (March 31, 2017), at . 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

[12] See House Report No. 113-48, Full Faith and Credit Act, available at

[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

[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

[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:

[18] See CNN World, Zimbabwe to print first $100 trillion note (January 16, 2009), at   See also the blog of 11/12/2010, The Wages of Hyperinflation, at . That one deals with hyperinflation in Weimar Germany.

[This is Phil from last week. I’ve been reading a lot about our President-Elect, Donald J. Trump, and his telephone-adventure with the two Chinas, and I’m a bit confused. I know we buy TVs and gadgets from the one on the mainland, and sell lots of weapons to the other one on Taiwan, but apparently we’re only supposed to talk to the mainland Chinese.  When Mr. Trump took a call from the new president on Taiwan, he committed some sort of major faux pas, or at least that’s what our pundits would have us believe. So why do we arm, yet not acknowledge the existence of a government on Taiwan? Isn’t that a bit illogical? My instincts tell me that lawyers and politicians must be involved somehow, so naturally I asked Larry, our occasional legal consultant, for advice. He knows a thing or two about the situation, and here’s what he said.]

An old[1] teacher of mine once said that “a page of history is worth a volume of logic.”[2] That’s certainly true where mainland China and Taiwan are involved. The history of China was a tangled business in the 20th Century, fascinating and complex.[3] Luckily we don’t have to do a detailed analysis in order to understand the argument between the mainland Chinese and Taiwan. Basically from 1928 through 1949 the two main contending parties for control of China were the Nationalist Chinese, under General Chiang Kai-shek, and the Communist Party of China. Their dispute subsided in the face of the Japanese invasion of World War II, but after the war – the Japanese lost – the warring factions went back to war. In 1949 the Communists overthrew the Nationalists and established the People’s Republic of China [the PRC]. Many of the Nationalists retreated to Taiwan.

The Sino-American Mutual Defense Treaty

While the Nationalists no longer controlled mainland China, we – the U.S. – still had a mutual defense treaty with the old government and, in 1979, President Carter, as a step in a process begun by President Nixon to normalize relations with the PRC, unilaterally terminated that agreement.[4] Powerful forces in the Congress opposed this, and sued, arguing that the treaty had been ratified by the Senate and the President had no authority to dispense with it on his own motion.

Article II, Section 1 of the Constitution provides “[t]he executive Power shall be vested in a President of the United States of America.” Article II, Section 2 says “[h]e [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.…” [5]  So one way to frame the issue is, if the Senate must advise and consent to creating a treaty, must it also do the same to terminate one? Article II doesn’t expressly say that. Or is the President’s executive power so great that he can nullify a treaty on his own?[6]

That’s a fascinating question, one might say an important one involving the separation of powers between Congress and the Executive Branch; and various senators, including Barry Goldwater of Arizona, took it to court. But in 1979 the Supreme Court ducked the issue. The court took jurisdiction of Goldwater’s case; “vacated” the judgment of the appeals court below; and directed the trial court to dismiss the action. In short, the court ordered the suit to go away. There was no majority opinion explaining or justifying the action. The case is Goldwater v. Carter.[7]

There were, however, a series of concurring and dissenting opinions. Justice Marshall concurred in the result but wrote no opinion. Justice Powell said that the matter was not ripe for judicial review.[8] Justices Rehnquist, Burger [the Chief Justice], Stewart, and Stevens said that the basic question in the case was “political” and “therefore nonjusticiable because it involves the authority of the President in the conduct of our country’s foreign relations and the extent to which the Senate or the Congress is authorized to negate the action of the President.”[9] In short, 6 of the 9 justices voted to get rid of the case, but they didn’t agree on why.[10] Perhaps they just wanted to get that hot potato off their table.[11]

The Taiwan Relations Act

While Goldwater v. Carter didn’t teach us much about diplomacy, Congress followed up with some lessons of its own. Congress passed the Taiwan Relations Act of 1979,[12] a statute I had never heard of until you asked me to look into this, the latest Trump controversy. The statute acknowledges that the United States no longer recognizes Taiwan as a government. Nevertheless:

  • The United States “will make available to Taiwan such defense articles and defense services in such quantity as may be necessary to enable Taiwan to maintain a sufficient self-defense capability.”[13]
  • The absence of such recognition “shall not affect the application of the laws of the United States with respect to Taiwan,” i.e., such laws shall apply in the same manner that they did before recognition was withdrawn.[14]
  • U.S. programs and transactions with respect to Taiwan “shall” be conducted through an independent entity, the “American Institute in Taiwan,” a “nonprofit corporation incorporated under the laws of the District of Columbia,” or a comparable successor.[15]
  • Taiwan shall act with respect to us through an entity or entities established by it for that purpose. “Whenever the [US] is authorized or required … to render or provide to or to receive or accept from Taiwan, any performance, communication, assurance, undertaking, or other action, such action shall … be rendered or provided to, or received or accepted from, an instrumentality established by Taiwan ….”[16]

In short, under existing law our Government and Taiwan’s do business, but through intermediaries. Today the arrangement is thought to be successful, although possibly subject to improvement.[17]

So, let’s go on to the basic question. Did Donald J. Trump violate any law by accepting a phone call from the President of Taiwan? My guess is, probably not.  Donald Trump is, dare I say this? Currently he is not a Government employee. Next month he will be sworn in as President of the United States. But that’s next month. Right now Barrack Obama is our President. Trump is a private citizen, with high expectations but currently no power in the federal bureaucracy.

Well, what if Barrack Obama wanted to disregard the Taiwan Relations Act? Could he do it today? He’s very definitely a part of the government. But Presidents, as we know, have wide latitude in conducting foreign policy. The Supreme Court in 1979 didn’t say much about Taiwan, except to stay out of a nasty argument between some senators and President Carter. But recent cases indicate that there are limits on even our Congress when it tries to interfere legislatively with foreign policy.[18] So who knows what the answer is? Perhaps President Trump, when he takes office, will try to find out.

[1] He taught me a long time ago, so that makes him old; but, he was ancient at the time, so that makes him doubly old.

[2] He was talking about real property law, and quoting Oliver Wendell Holmes. For the source of the quote, see New York Trust Co. v. Eisner, 256 U.S. 345 (1921) (Holmes, Justice). In my view the principle applies to many human endeavors, not just the buying and selling of real estate.

[3] For a brief introduction, take a look at the Wikipedia entry on the Republic of China, at

[4] The full text of the Taiwan Relations Act, as passed in 1979, appears in the U. S. Statutes at Large. See Taiwan Relations Act, Pub. Law 96-8 (April 10, 1979), 93 Stat. 14 – 21. You can retrieve it online from the Government Printing Office, at . There’s no charge. Henceforth this Act will be cited as “Pub. Law 96-8, §__.” See Pub. Law 96-8, §2(a): “The President having terminated governmental relations between the United States and the governing authorities on Taiwan recognized by the United States as the Republic of China prior to January 1, 1979, the Congress finds that the enactment of this Act is necessary ….”

[5] For an authoritative version the United States Constitution, and its Amendments, check out the National Archives. For the Constitution, go to: . That’s the version we’ll be citing here. If you want to look at the Amendments, go back to the National Archives, this time to  for the first 10 [the “Bill of Rights”]; and to for the rest. You also can start the process by logging in at  . There are other sources as well. You can get a copy of the Constitution from the Government Printing Office, at . Why pay for a copy when you can get one that’s accurate and free?

[6] Need I point out that Wikipedia has opinions about Article 2? They’re published at .

[7] See Goldwater v. Carter, 446 U.S. 996 (1979). For those of you who have a law school or federal court house in your neighborhood, and access to its law library, you can go and look it up. The official printed, bound version of the case is the best evidence of its contents. “Only the printed bound volumes of the United States Reports contain the final, official opinions of the Supreme Court of the United States. In case of discrepancies between a bound volume and the materials included here–or any other version of the same materials, whether print or electronic, official or unofficial–the printed bound volume controls.” So says the Supreme Court, at . Unfortunately while the Court has many of its more recent decisions digitized and available on its website, the online library does not go back as far as 1979. That being the case, we had to look elsewhere. We found versions of the case available on the Justia web site, , and from Harvard Law, . On balance, we chose the Harvard version.

[8] See 446 U.S. 996, 997.

[9] See 446 U.S. 996, 1001 – 1002.

[10] Wikipedia has its own view of the case. Check it out at

[11] If you’re getting interested in our Constitution, and what’s been happening to it, let me suggest a valuable resource I sometimes use myself. Every few years the Library of Congress researches and publishes an annotation to reflect the history and current law [principally Supreme Court decisions] pertaining to the Constitution. The most recent version [of the annotation] is dated this year, and amounts to 2835 pages. See Senate Doc. No. 112-9, 112th Congress, 2nd Session, The Constitution of the United States of America, Analysis and Interpretation (Centennial Edition) (interim, through June 27, 2016). It’s quite impressive and is available to the public for free as a pdf file. You can get it from the Library of Congress, at

[12]  That’s Pub. Law 96-8 (April 10, 1979), 93 Stat. 14 – 21. See note 4 for the full citation and explanation of how to access it. If you would like a relatively simple explanation of the Taiwan Relations Act, check out the Wikipedia entry at . Or you can read this blog.

[13] See Pub. Law 96-8, § 3(a).

[14] See Pub. Law 96-8, § 4(a).

[15] See Pub. Law 96-8, § 6(a).

[16] See Pub. Law 96-8, § 10(a).

[17] See, e.g., Brookings, Bush, Thoughts on the Taiwan Relations Act (April 21, 2009), available at

[18] See the blog of 2015/07/02, Zivotofsky v. Kerry, available at

[Last time, when we discussed Bentham’s analysis of the appeal to authority, and when it’s fallacious, we pointed out that he reserved a special place for scientists, engineers and the like in the hierarchy of sources he might trust. They practice in areas that rely on “direct and specific evidence,” not on ancient authorities[1]; they prosper to the extent that their new insights, discoveries, etc. prove to be correct; so they are potentially a good source of credible opinion, so long as they testify in their areas of competence.[2]

On the other hand, Bentham had a much dimmer view of lawyers and legal opinions. These, he said, were especially doubtful as authorities because the interests of lawyers are really opposed to the “universal interest” of the people[3], and legal opinions, especially those given by advocates, “are peculiarly liable to be tinged with falsity by operation of sinister interest.”[4]

That’s strong language, even for 200 years ago, but he supports it with a bill of particulars that I thought we should explore for a bit. So I asked Phil if he would reopen the Bentham file one more time this month to do that job, and he agreed, but with qualifications. As you may have noticed, there always are qualifications. Nevertheless, here’s his take on Bentham’s critique of lawyers.]

And I’m glad to do the job, but first we need some context. We use that word – context – a lot these days, don’t we? Bentham was a Utilitarian; he believed the job of legislators, and Government in general, was to “foster the greatest happiness of the greatest number”[5] of people. All new legislation, he thought, should be evaluated by that standard. Anyone who rejected that notion was “an enemy to the community.”[6]

So if you are Jeremy Bentham, or one of his followers, and serve in a legislature of some sort, you necessarily spend a lot of time analyzing proposed laws and how they might work. You focus on specifics; you want to know who a law is supposed to help and who it might affect negatively; or more generally, you want to analyze consequences, intended or unintended. Debate that speeds the process along is good; debate techniques that block or impede the analysis are bad, because they cloud the mind. At least, that’s my understanding of Bentham’s approach.

If there are legal objections to a proposed course of action, the analyst should focus on specifics, not on glittering generalities. Legislators, even lawyers, have to have reasons to support their conclusions, and lawyers, for sure, are uniquely qualified to find them, if they exist. “On every such point, [the lawyer’s] habits and experience afford him facilities not possessed by [anyone] else for finding relevant and specific arguments, when the nature of the case affords any….”[7] If no such arguments are forthcoming, that “amounts to a virtual confession of their non-existence.”[8]

So this is Bentham’s real objection; he’s not opposed to legal opinions per se; he just doesn’t like the ones that start with “Trust me, I’m a lawyer and know about this kind of thing;” and end right there. He wants to see some explanation. If a lawyer has a basket of reasons to support his position, Bentham is willing to sort through them to see what he thinks. If none are forthcoming, then Bentham assumes the worst.

And the worst is pretty bad. “In the case of every other body of men,” says Bentham, “it is generally expected that their conduct and language will be for the most part directed by their own interest, that is, by their own view of it.”[9] This is also true of lawyers, except that lawyers’ interests, for the most part, are aligned against those of the common man [or woman]. For example:

  • Litigation is time-consuming and expensive. “It is every man’s interest to keep out of lawyers’ hands as much as possible; it is the lawyer’s interest to get him in as often, and keep him in as long as possible .…”[10] Lawyers benefit from the delay, vexation and expense of law suits; ordinary people do not. [11] So lawyers have an interest in opposing any efforts to simplify or expedite litigation.
  • Ordinary people benefit if the law is clear; they understand their rights, and also the things that they should not do. They benefit if the law is “not only discoverable, but actually present to” their minds.[12] “Such knowledge, which it is in every man’s interest to possess to the greatest, it is the lawyer’s interest that he possess it to the narrowest extent possible.”[13] If people are unclear on the law, they will make mistakes and end up in court. That’s good for lawyers – more business for them – but bad for clients. So lawyers have an interest in opposing any efforts to clarify or recodify the law.
  • The lawyer’s job is to represent his or her client, and to make the best possible arguments on the client’s behalf. The lawyer doesn’t have to agree with the arguments; he just needs a reasonable basis for making them. So, in a sense the lawyer can misrepresent his own opinion as to the law, when it is in the client’s interest to do so. This custom, or habit in Bentham’s terminology, is “almost peculiar … in comparison with” what other people do[14], and is well known to the public.
  • Given all of the above, it’s “not unreasonable” to simply disregard general opinions given by lawyers in opposition to legal reform on the grounds that they may be motivated by self-interest [or possibly, by the interest of a client]. [15]

Now, for those of you who followed our earlier Bentham dissertations, you may detect a bit of a contradiction here. Bentham also said, in discussing the fallacies of danger, that one cannot simply discard an idea, or proposal, simply because the person offering it has a bad motive. You can’t do that “[i] because motives are hidden in the human breast, and [ii] because, if the measure is beneficial, it would be absurd to reject it on account of the motives of its author.”[16] So why reject a legal opinion simply because it’s provided by a lawyer? That’s not proof that it’s automatically false.

True enough, but while the opinion isn’t automatically false just because it’s rendered by a lawyer, it’s not automatically true, either. And, what bugs Bentham, I think, is that in our hypothetical situation the opinion isn’t useful. It says, in essence, “I looked at this, it’s OK [or it’s not OK], and trust me, I’m a lawyer.” No reasons are given, and there’s really nothing for a good Utilitarian to evaluate.

So Bentham chooses to ignore the thing on the theory that it probably was motivated by the lawyer’s self-interest, it could be dangerously wrong, and there’s no evidence, other than a bald assertion, that it might be correct.

That’s my view of it, anyway; perhaps there are some Bentham scholars out there who have a different opinion; if so, I’d like to hear from them.

[Yes, that’s quite a conundrum, isn’t it? What do you do with an opinion of counsel that says “It’s OK” and nothing more? I’ve seen major financial transactions go forward on nothing more than that, but in those cases the opinion-giving firm was involved from the get-go in structuring the deal, and really put its reputation – and malpractice insurance – on the line with its imprimatur. But those were special situations, I guess.

And, of course, I did work for the Government at one time or another, and in those days in-house clients preferred to avoid opinion letters; they liked simple initials on a coordination sheet, so they could do what they wanted to do, without restrictions, and had somebody to hide behind – i.e., the lawyer – if major problems developed. At first it’s always easy to be an agency counsel; just say yes and go home early; and then the trouble starts.

Anyway, I think Bentham’s 200 year old critique of lawyers is interesting. I’m not saying, of course, that it’s as true now as it might have been back then. But I wonder, what do our readers think? Is lawyer self-interest as obvious and pervasive today as Bentham thought it was in his time? The practice of law certainly is remunerative for some, but would you want a lawyer as a friend?

Apologies to Larry for that comment.]

[1] See Bentham & Bingham, The Book of Fallacies: From Unfinished Papers of Jeremy Bentham (Hunt, 1824, Nabu Reprint, circa 2010) at p. 51. Hereafter the book will be cited as Political Fallacies at __. Nabu reprints are basically photocopies of the original, so page citations necessarily will be to the original.  “In mechanics, in astronomy, in mathematics, in the new-born science of chemistry,- no one has at this time of day either effrontery or folly enough to avow, or so much as to insinuate, that the most desirable state of these branches of useful knowledge, the most rational and eligible course, is to substitute decision of the ground of authority, to decision on the ground of direct and specific evidence.”

[2] See Political Fallacies at p. 44: “Neither is there any fallacy in making reference to the opinion of this or that professional person, in a case to such a degree professional or scientific, with relation to the hearers or readers, that the forming [of] a correct judgment on such relevant and specific arguments as belong to it, is beyond their competence. In matters touching medical science, chemistry, astronomy, the mechanical arts, the various branches of the art of war [etc.] no other course could be pursued.”

[3] See Political Fallacies at p. 57.

[4] See Political Fallacies at p. 57.

[5] See Political Fallacies at p. 46.

[6] Id.

[7] See Political Fallacies at p. 61-62

[8] Id.

[9] See Political Fallacies at p. 61

[10] See Political Fallacies at p. 58-59

[11] See Political Fallacies at p. 58: “The opinions of lawyers in a question of legislation, particularly of such lawyers who are or have been practicing advocates, It is the people’s interest that delay, vexation and expense of procedure should be as small as possible: – it is the advocate’s that they should be as great as possible viz. in so far as his profit is proportioned to it; factitious expense and delay, in so far as inseparable from the profit-yielding part of the expense.”

[12] See Political Fallacies at p. 58

[13] See Political Fallacies at p. 58

[14] See note 15.

[15] See Political Fallacies at p. 60: “His professional and personal interest being adverse to that of the public, from a lawyer’s declaration that the tendency of a proposed law relative to procedure [etc.] is pernicious, the contrary inference may not unreasonably be drawn.” See also Political Fallacies at p. 60-61: “From those habits of misrepresenting their own opinion (i.e., of insincerity), which are almost peculiar to this in comparison with other classes, one presumption is, that he does not entertain the opinion thus declared; – another, that if he does, he has been deceived into it by sinister interest and the authority of co-professional men, in like manner deceivers or deceived: in other words, it is the result of interest-begotten prejudice.”

[16] See Political Fallacies at Imputation of Bad Motive, p. 133.

Oho! The Pope! How many divisions has he got?

Joseph Stalin[1]

[Today’s quote is from Joseph Stalin, a former leader of the former Soviet Union. Stalin was deriding a Pope of the 1930’s, and the answer to Stalin’s question was simple. That Pope had no divisions. Later this month the current Pope, Francis[2] by name, will visit America, and he doesn’t have any divisions, either. Nor does he have fissile materials, nuclear or thermonuclear weapons or other things of that sort stashed in the Vatican basement. But perhaps he has something more powerful; a sharp mind and a clear vision of what’s really going on in this tired old world of ours.

This Pope has a thing about ecology and the climate. He even wrote a letter about it last May.[3] But that was 3 months ago, so our short-attention-span media have forgotten, or at least don’t mention the letter much. But no doubt he’ll remind us later this month, when he addresses a joint session of our most excellent Congress, and that should be interesting.

We all know Congress, and especially Republicans, love the foreign dignitaries with whom they agree. Just think of all the whooping and hollering that went with Benjamin Netanyahu’s visit back in March. That was a real love feast! Don’t believe me? You can see the whole thing at But what will happen when someone comes to Congress and says things emotional Republicans don’t like? Something about controlling carbon emissions, reducing our reliance on fossil fuels, or conservation? Will Republicans sulk and mutter for the duration? Will they walk out? Or will they riot?

You see the  Pope, unlike today’s Republicans, agrees with the scientific consensus that our globe really is warming, and he’s concluded that’s not a good thing. We – human beings collectively – should be stewards of the world, not its assassins; but lately we’ve been acting like the bad guys, and the results are coming in: acidification of the oceans[4], melting polar ice caps[5], climate change that leads to mass migrations[6], strange and violent storms and fires, and so forth. Today the brunt of these changes falls on the poor, not the rich, and that’s not good, either.

But I’m not the main presenter this time; so I’ll shut up and turn the podium over to Phil, our resident philosopher. Phil tells me he’s actually read the Pope’s entire recent letter, and understands a good part of it. That qualifies him as an expert around here and, more to the point, he’s our only volunteer. ]

Thanks for the introduction, I think. I should point out that the “letter” you mention is the Pope’s new Encyclical, Laudato Si’; it’s long and complicated, and while some of it is theology, a lot also is hard science. The English translation runs to 81 pages, including footnotes, and includes 246 numbered paragraphs and two prayers.[7] I know my limitations; I’m going to touch on the theology, but concentrate more on the science part. But even that is complicated, so I’ll narrow the discussion a bit further. I’ll focus chiefly on Paragraph 23 of the document.

[Paragraph 23! Who’s going to talk about the other 245 paragraphs?]

Not me. I have a life, after all; and in any case, Paragraph 23 gives us a pretty good insight into the Pope’s reasoning. That’s plenty for a blog post. If you wanted a treatise, you should have called somebody else.

People who don’t like my selection should read the rest of the original, and point out where I’m wrong. I don’t mind being corrected. Good corrections make our product better.

[Blah, blah, blah. Get on with the discussion, please.]

Paragraph 23

Fine. Even paragraph 23 is fairly long, so I’m going to summarize the three main points here, and quote it at length in the notes.[8] The main points are:

  • The climate is “a common good, belonging to all and meant for all.” Global climate is complex, and “linked to many of the essential conditions for human life.” Humans are “stewards” of this world and to the extent possible should manage it for the benefit of all.
  • There’s a “very solid scientific consensus … that we are presently witnessing a disturbing warming of the climatic system.” This “has been accompanied by a constant rise in the sea level and, it would appear, by an increase of extreme weather events ….” These changes, in whole or in part, can be traced to humanity’s increasing use of fossil fuels, and the greenhouse gasses generated thereby. “Another determining factor has been an increase in changed uses of the soil, principally deforestation for agricultural uses.”
  • “Humanity is called to recognize the need for changes of lifestyle, production and consumption, in order to combat this warming or at least the human causes which produce or aggravate it.”

For the Common Good

The notion that humans are the “stewards” of the environment is, of course, aspirational. Pope Francis makes his argument with historical analogies[9], scriptural references[10], and the writings of earlier modern popes[11], but – to me, at least – its real power springs from the fact that the contrary position is unattractive and possibly suicidal. Either governments will manage the environment with a decent respect for the interests of others, or they will ignore everyone but themselves and make enemies everywhere.

Why? Well, because everything is so damnably interconnected these days. Burn coal or oil in China, and you may help melt ice caps at the north or south poles, or glaciers in Norway, etc. So governments have to discuss this kind of thing with one another, set limits on fossil fuel consumption, develop new, alternative technologies, and generally make arrangements to avoid degrading the environment we all share.

Trapping Heat

Now let’s talk about world temperatures. There’s really not much dispute about whether they are rising. The Intergovernmental Panel on Climate Change [the IPCC] reports “[w]arming of the climate system is unequivocal, and since the 1950s, many of the observed changes are unprecedented over decades to millennia. The atmosphere and ocean have warmed, the amounts of snow and ice have diminished, sea level has risen, and the concentrations of greenhouse gases have increased.”[12]

[So why did this happen? How does a planet warm?]

One way is by retaining heat from the Sun, rather than reflecting it back out into space. Astronomers have known for some time, for example, that Venus, the planet in our solar system next closer to the Sun than ours, has surface temperatures close to 900 degrees Fahrenheit.[13] That’s really hot, the hottest in the solar system.How does it happen? Well, it’s not just because of Venus’s location. It also has lots of greenhouse gasses in its atmosphere.

[What’s a greenhouse gas?]

Stop interrupting! I was getting to that. Carbon dioxide is one, and it’s very efficient at trapping heat. It lets visible light from the sun pass through it, but traps the infrared radiation that’s generated once the sunlight heats a planet’s surface. So that heat – the infrared – is retained, instead of being reflected back out into space, and further heats the lower atmosphere and the ground.[14]

Well, the same thing happens here on Earth, but it’s not so extreme. Our planet’s atmosphere has a greenhouse effect that raises surface temperature here about 25 degrees Fahrenheit above what it would be with no atmosphere at all.[15] That’s not the problem; in fact, the temperature difference – and the atmosphere, by the way – are essential to support many forms of life.

But what happens if we pile more carbon dioxide into the atmosphere, say, by burning more and more fossil fuels? Or what if levels of other greenhouse gasses, such as methane, nitrogen oxides and others[16], also begin to rise? Will surface temperatures go up? Well, surely they won’t fall, will they? And, anyway, the IPCC has said that surface temperatures on Earth definitely are on the rise.

[So, does the Pope agree that rising levels of greenhouse gasses are the sole reason why surface temperatures on Earth are going up?]

Time to Change

No. He says that’s not conclusively proved. There may be other possible factors at work out there, “such as volcanic activity, variations in the earth’s orbit and axis, the solar cycle”[17]; but most studies agree that human activity – burning fossil fuels – is the big factor in global warming. So if humans are part of the problem, they need to be part of the solution as well.

And even if humans “didn’t do it” with respect to some part of global warming, we still must act to undo any damage if possible. If there’s a forest fire, started by lightening, humans still have to put it out. To ignore the fire is irrational. The same is true for global warming.So we’ve got to cut back on our coal and oil addiction, not increase the supply. Take that! Republicans.

[Come on, Phil! The Pope didn’t actually make a rude gesture when he issued Laudato Si’, did he?]

Probably not.

[Good. I’m thinking the only thing that will reduce world oil consumption in the near term is a world-wide recession. Governments generally aren’t fans of recessions but, on the other hand, so what? Recessions come and go regardless of what Governments want. And for some reason, they’re always unexpected when they occur. The big one in 2008 seemed to be a surprise to everybody important, including the media, Wall Street, and the Bush Administration. Frankly, I don’t know why.

Anyway, thanks, Phil, for all your help. I know there’s a lot more you wanted to say on this subject, but we kind of ran out of time and energy. So let’s make it a date to revisit the Pope’s views sometime soon. Perhaps we could even talk about a different paragraph next time?]






[1] This is from Rees, Brewer’s Famous Quotations (Weidenfeld & Nicolson, 2006) (hereafter, Brewer’s at __), at p. 440, Joseph Stalin, n. 9. It’s of course an English translation from the Russian.

[2] See the Wikipedia entry at

[3] The Holy See, Encyclical Letter LAUDATO SI’ of the Holy Father Francis On Care for Our Common Home (Rome, May 24, 2015) (hereafter cited as Laudato Si’ at __) It’s available from the Vatican, at

[4] See, e.g. Laudato Si’ at p. 8 ¶24: “Carbon dioxide pollution increases the acidification of the oceans and compromises the marine food chain.”

[5] See, e.g. Laudato Si’ at p. 8 ¶24: “The melting in the polar ice caps and in high altitude plains can lead to the dangerous release in methane gas, while the decomposition of frozen organic material can further increase the emission of carbon dioxide.”

[6] See, e.g. Laudato Si’ at p. 8 ¶25

[7] The prayers are at the end. One is “A prayer for our earth;” the other “A Christian prayer in union with creation.”

[8] See Laudato Si’ at p. 7 – 8, ¶23. “The climate is a common good, belonging to all and meant for all. At the global level, it is a complex system linked to many of the essential conditions for human life. A very solid scientific consensus indicates that we are presently witnessing a disturbing warming of the climatic system. In recent decades this warming has been accompanied by a constant rise in the sea level and, it would appear, by an increase of extreme weather events, even if a scientifically determinable cause cannot be assigned to each particular phenomenon. Humanity is called to recognize the need for changes of lifestyle, production and consumption, in order to combat this warming or at least the human causes which produce or aggravate it. It is true that there are other factors (such as volcanic activity, variations in the earth’s orbit and axis, the solar cycle), yet a number of scientific studies indicate that most global warming in recent decades is due to the great concentration of greenhouse gasses (carbon dioxide, methane, nitrogen oxides and others) released mainly as a result of human activity. Concentrated in the atmosphere these gasses do not allow the warmth of the sun’s rays reflected by the earth to be dispersed in space. The problem is aggravated by a model of development based on the intensive use of fossil fuels, which is at the heart of the worldwide energy system. Another determining factor has been an increase in changed uses of the soil, principally deforestation for agricultural uses.”

[9] Principally, to St. Francis of Assisi. See, e.g. Laudato Si’ at p 3-4, ¶¶10, 11 & 12.

[10] See, e.g. Laudato Si’ at p 1, ¶2.

[11] See, e.g. Laudato Si’ at p. 2-3, ¶4 (Pope Paul VI), ¶5 (Saint John Paul II), & ¶6 (Pope Benedict XVI).

[12] See IPCC, Climate Change 2013: The Physical Science Basis, available at and specifically, the Summary for Policymakers, at §B, Observed Changes in the Climate System, available at

[13] See de Grasse Tyson & Goldsmith, Origins (Norton, 2004) (hereafter cited as Origins at __) at p. 261.

[14] See Origins at p. 260: “Sunlight can therefore penetrate Venus’ atmosphere even though atmospheric reflection reduces the amount of sunlight that reaches the surface. This sunlight heats the planet’s surface, which radiates infrared, and which cannot escape. Instead the carbon dioxide molecules trap it, as the infrared radiation heats the lower atmosphere and the surface below. Scientists call this trapping of infrared radiation the “greenhouse effect,” by loose analogy to their glass windows, which admit visible light but block some of the infrared.”

[15] Id.

[16] See Laudato Si’ at p. 7 – 8, ¶23

[17] Id.

Don’t be surprised

If I demur, for, be advised

My passport’s green.

No glass of ours was ever raised

To toast The Queen.

Seamus Heaney[1]

[Last March, you may recall, we posted a blog about foreign relations, our President and the Congress.[2] Israel’s Prime Minister had just come by on a campaign swing; lectured us about why we shouldn’t negotiate with Iran about nuclear weapons or anything; accepted the applause of a grateful Republican Congress; and returned home to win a decisive victory in his own election. Enthused by the proceedings some Republican Senators – 47 of them – followed up with an “open letter” to Iran’s, senior leadership[3], advising that any agreement on nuclear weapons with the Obama Administration could be short-lived. Without action by the Congress any agreement with the present Administration could be dispensed with by the next.[4] Was this an invitation to Iran to open negotiations with Republicans as well as the current Administration? Was it simply an effort to stop the current negotiations in their tracks? Or what?

Frankly I was confused, so I called Larry, our consultant on legal matters, to help me understand. He said, in essence, that he wasn’t a mind-reader, so he couldn’t say what the people who signed that letter actually intended to do. But, he said, there is a Constitutional doctrine out there to the effect that the President is “the sole organ of the nation in its external relations, and its sole representative with foreign nations.[5]” This idea dates back to John Marshall, the first Chief Justice of the Supreme Court, although he put it forth when he was a Member of Congress, not in deciding a case.[6] Some 130 years later the Supreme Court picked up on the same notion in United States v. Curtiss Wright[7]saying that the President has “the very delicate, plenary and exclusive power … as the sole organ of the federal government in the field of international relations ….”[8] Also there’s a statute that arguably makes it illegal for any U.S. citizen not in the Executive Branch to meddle in U.S. negotiations with foreign powers.[9]

Anyway, last week Larry called and said that there have been new developments in the debate about who controls foreign policy. The new development is, of course, Zivotofsky v. Kerry[10], a recent decision of the U.S. Supreme Court. What was that case about, Larry, and what did it say?]

Thanks for the intro. To understand what happened in Zivotofsky, perhaps it’s best to start with the Curtiss Wright decision you mentioned earlier. While Curtiss-Wright said that the President is the “sole organ” of our Government in international relations, it added an important, albeit obvious qualification. The President must exercise that power “in subordination to the applicable provisions of the Constitution.[11]

Our Constitution vests “executive power” in the President of the United States, but limits him by providing that Congress makes the laws he must enforce. [12] So what happens when Congress decides to make a law about an area where the President has wide discretion, say, in international relations, where he is the “sole organ”?

The fact of the matter is, the Constitution assigns lots of responsibilities to Congress that touch on or affect foreign relations. Congress can regulate foreign commerce; establish a uniform rule for naturalizing citizens; coin money, regulate its value, and that of foreign currency; define and punish piracies, etc., committed on the high Seas, and offences against the Law of Nations; declare war, grant Letters of marque and reprisal, and make rules concerning captures on land and water; and so forth.[13]

[This sounds pretty mushy to me.  The President is the “sole organ” of foreign policy, but Congress has a lot of power too. What’s your point?]

Well, that brings us to Zivotofsky. You see, Zivotofsky, a U.S. citizen, wanted a U.S. passport, or more particularly, a passport that said he was born in Israel. In truth, he was born in the city of Jerusalem.

[So what. Israel pretty much controls Jerusalem these days, doesn’t it? So Zivotofsky just wanted his passport to recognize that reality. What’s the harm in that?]

The harm is, no U.S. Administration, since the founding of the state of Israel, has recognized any country as having sovereignty over Jerusalem. That’s an issue to be decided by the Israelis and the Palestinians, through negotiations, rather than by the U.S.[14]

Congress tried to change the U.S. position back in the George W. Bush Administration, by adding §214(d) to the Foreign Relations Authorization Act of 2003. Section 214(d) required that any person born in Jerusalem must be listed on his or her passport as born in Israel, if they so request.[15] President Bush signed that Act, but said that he would construe the part that dealt with Jerusalem as advisory rather than mandatory. “[I]f construed as mandatory … [it would] impermissibly interfere with the President’s constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states.”[16]

[So how did the case come out? Did Zivotofsky get his wish? Could he specify the country of his birth?]

No. The Court agreed with Presidents Bush and Obama. The statute at issue was an unconstitutional infringement of the President’s authority. “[J]udicial precedent and historical practice teach that it is for the President alone to make the specific decision of what foreign power he will recognize as legitimate, both for the Nation as a whole and for the purpose of making his own position clear within the context of recognition in discussions and negotiations with foreign nations.”[17] Congress can’t require the President to reverse or contradict his determinations.

But the Administration didn’t get everything it might have wanted from the case. Relying on Curtiss Wright, one could argue that, as the “sole organ” for international relations, the Executive should have broad authority free of Congressional interference to do what it needed to do in foreign affairs. The Court didn’t go that far[18]  Instead it limited its holding solely to the power of the Executive Branch to recognize, or not to recognize, other governments.

In holding §214(d) invalid the Court does not question the substantial powers of Congress over foreign affairs in general or passports in particular. This case is confined solely to the exclusive power of the President to control recognition determinations, including formal statements by the Executive Branch acknowledging the legitimacy of a state or government and its territorial bounds.”[19]

In short, the Court was not particularly interested in straying very far from the facts of the case before it.

[Thanks, Larry. One final question?  What was the vote in this case?]

Justice Kennedy wrote the majority opinion, and was joined by Justices Ginsburg, Breyer, Sotomayor and Kagan. Justice Thomas, a 6th vote, agreed with the result, at least as far as passports were concerned, but disagreed with the Kennedy analysis on other matters.[20] The remaining three [Scalia, Roberts and Alito] dissented. So I guess the final tally was 6/3.

[Interesting. Anyway, harking back to our opening quote, perhaps in other countries people choose the color of their passports but it’s not the same over here. If a U.S. citizen is born overseas he must be born in a country we recognize, or we might pick one for him.]


[1] See Oxford Dictionary of Quotations (6th Edition) (Oxford, 2004) at p. 378, Seamus Heaney, n. 1. Henceforth this Dictionary will be cited as ODQ at __.

[2] See the blog of 03/22/2015, The Logan Act, available at .

[3] See U.S. Senate, An Open Letter to the Leaders of the Islamic Republic of Iran (March 9, 2015), available from many sources, including We’ll cite this as The Letter of the 47 at __.

[4] See The Letter of the 47 at par. 4: “…we will consider any agreement regarding your nuclear-weapons program that is not approved by the Congress as nothing more than an executive agreement between President Obama and Ayatollah Khamenei. The next President could revoke such an agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.”

[5] See John Marshall, Writings (LOA 2010) at Speech on the Case of Thomas Nash, p. 177 (March 7, 1800). Actually, there’s more and it’s all interesting. Hereafter this will be cited as Marshall, Writings at __.

[6] See Marshall, Writings at Speech on the Case of Thomas Nash, p. 177 (March 7, 1800). “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence the demand of a foreign nation can only be made on him. … He possesses the whole executive power. He holds and directs the force of the nation. Of consequence any act to be performed by the force of a nation, is to be performed by him.”

[7] 299 U.S. 304 (1936). If you don’t want to go to your local law library, you can find an online version of the decision at

[8] See 299 U.S. 304, 319-320.

[9] See 18 U.S.C. §953, Private Correspondence with foreign governments: ”Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

[10] Zivotofsky v. Kerry, 576 U.S. ___ (2015) (slip opinion, June 8, 2015). Justice Kennedy wrote the majority opinion; Justice Breyer filed a concurring opinion; Justice Thomas concurred in the judgment and dissented in part; and justices Roberts and Scalia filed separate dissents. Since we only have the slip opinion, and the majority, concurring and dissenting opinions are separately numbered, we’ll cite them as Zivotofsky, majority opinion (Kennedy) at __, concurring opinion (Breyer) at __, dissent (Scalia) at __, and so forth.

[11] See 299 U.S. 304, 319-320.

[12] See U.S. Constitution, Article II, Sec. 1: “The executive Power shall be vested in a President of the United States of America”; U.S. Constitution, Article I, Sec. 1; “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” If you want to examine the Constitution, and its Amendments, check out the National Archives for authoritative versions. Go to:

[13] See U.S. Constitution, Article I, Sec. 8.

[14] See the discussion in Zivotofsky, majority opinion (Kennedy) at 2-4. See also id. at 2: “Yet, in contrast to a consistent policy of formal recognition of Israel, neither President Truman nor any later United States President has issued an official statement or declaration acknowledging any country’s sovereignty over Jerusalem.”

[15] See Zivotofsky, majority opinion (Kennedy) at 2-4.

[16] See Zivotofsky, majority opinion (Kennedy) at 4.

[17] See Zivotofsky, majority opinion (Kennedy) at 18.

[18] See Zivotofsky, majority opinion (Kennedy) at 18: “In a world that is ever more compressed and interdependent, it is essential the congressional role in foreign affairs be understood and respected. For it is Congress that makes laws, and in countless ways its laws will and should shape the Nation’s course. The Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue. … It is not for the President alone to determine the whole content of the Nation’s foreign policy.

[19] See Zivotofsky, majority opinion (Kennedy) at 29.

[20] Justice Thomas’ opinion is longer than the majority’s.