Full faith and credit and showdownarama 2013

[ewmayer]

Originally Posted by only_human

What does it matter how much anyone spoke out against illegal spying? What a strange shibboleth. I don't think I posted in it at all, or maybe very little - but mainly because I didn't think that I was holding any special point that hadn't been made.

If - speaking strictly hypothetically for the moment - someone 'spoke out against the spying" while it was being done under W. Bush, but not under Obama, it might be construed as evidence of partisan bias, thus making my point about red-team/blue-team silliness.

Originally Posted by cheesehead

Define "unfunded law".

I think it has been quite rare for Congress, at the time it passes a bill creating a new executive-branch power or obligation, to have simultaneously appropriated sufficient funds for the entire future carrying-out of operations in support of that power or obligation.

If congress were to pass a bill which carried with it a funding obligation and there were evidence that they deliberately ignored available cost estimates [and/or deliberately overstated revenue estimates] and as a result under-appropriated funding, would you consider that as a violation of the 14th amendment? Because broadly construed, the amendment could reasonably be read as referring to anything which negatively impacts the full faith and credit, i.e. the ability of the government to finance itself.

[cheesehead]

Originally Posted by ewmayer

If congress were to pass a bill which carried with it a funding obligation and there were evidence that they deliberately ignored available cost estimates [and/or deliberately overstated revenue estimates] and as a result under-appropriated funding, would you consider that as a violation of the 14th amendment? Because broadly construed, the amendment could reasonably be read as referring to anything which negatively impacts the full faith and credit, i.e. the ability of the government to finance itself.

Define "unfunded law". That was your phrase, not mine.

[kladner]

Because broadly construed, the amendment could reasonably be read.....

Broad constructions are notably unpopular with the RATS (Roberts, Alito, Thomas, Scalia) of SCOTUS, unless those constructions refer to the unalienable rights of the über-wealthy and corporations to unlimited monetary speech.

Sweet reason is also in disfavor with this lot , unless it serves to justify predetermined conclusions as to such rights mentioned above, as well as to the outcomes of closely contested elections.

[Batalov]

Crosspost from another forum.

Also, in the followup to the dialog below:

America was not shut down properly.
Would you like to start America in safe mode, with free healthcare & without the gun laws? (Recommended)

[chalsall]

Originally Posted by Batalov

Crosspost from another forum.

Also, in the followup to the dialog below:

Just wondering... Why didn't you just pull the plug out of the Governmental?

It might have solved several problems all at the same time.

[CRGreathouse]

Originally Posted by chalsall

Just wondering... Why didn't you just pull the plug out of the Governmental?

https://en.wikipedia.org/wiki/Twenty...s_Constitution

[Nick]

US Treasury Secretary Jack Lew has warned ...that the Treasury's payment systems were not designed to work without funds for payment. According to Mr Lew that would make it difficult to prioritise payments.

Wonderful: book-keeping software which assumes that funds are always available.

http://www.bbc.co.uk/news/business-24471623

[only_human]

Republicans Offer Short-Term Deal To Raise Debt Limit, Leave Government Shutdown

It's hard to guess what trajectory this will have and perhaps some Continuing Resolution moves will occur also.

Portuguese dance

Fandango is one of the main folk dances in Portugal. The choreography is quite simple: on its more frequent setting two male dancers face each other, dancing and tap-dancing one at each time, showing which one has the most lightness and repertoire of feet changes in the tap-dancing. The dancers can be boy and girl, boy and boy (most frequent) or rarely two girls. While one of the dancers dances, the other just "goes along". Afterwards, they "both drag their feet for a while" until the other one takes his turn. They stay there, disputing, seeing which one of them makes the feet transitions more eye-catching.

When I was young I flew RC (remote control) gliders for a little while (a "Wanderer" and a "Thermal Hopper"). When shopping around I noticed a powered craft called 1/2 A Baby Turkey. I didn't know that "1/2 A" was a motor rating.

So, looking at this potential 6 week deal, maybe this will pass but the optics will look bad regardless of the truly necessary need of saving Wall Street and the world if the US Government remains in shutter-stagnation. I want to be optimistic but when this new 6 week clock runs out -- What kind of Thanksgiving will we have with all the turkeys in Washington?

[cheesehead]

"The budget is its own ‘debt ceiling'"
http://news.yahoo.com/budget-own-deb...000751561.html

(This is the most detailed exposition I've yet seen, of the argument that the "debt ceiling" was superseded in 1974.)

Note: This Yahoo! version is based on a Reuters blog article (http://blogs.reuters.com/great-debat...t-act-of-1974/). I haven't compared wording to see whether Yahoo! changed anything.

Originally Posted by Daniel Alpert and Robert Hockett

. . .

Going forward, however, we should repeal the 1917 Liberty Bond Act — the source of the "debt ceiling" regime that everyone's talking about. This was effectively superseded by today's budget regime, enacted under the Congressional Budget and Impoundment Control Act of 1974. Making this explicit by repealing the 1917 "debt limit" regime is preferable to leaving things merely implicit as they are now.

. . .

Something like this apocryphal impasse would confront the president if Congress did not raise the "debt ceiling" later this month.

On the one hand, Obama would be required — under the nation's 1974 vintage budget law and continuing obligations — to keep paying the nation's creditors and issue Treasury debt if tax revenues fell short of those payment commitments.

He would also, however, be required to cease making those payments, and thus violate the budget law passed under the 1974 regime, according to the 1917 "ceiling" regime, which was largely forgotten by the public until rediscovered by opportunistic politicians in 2011.

The president cannot comply with both regimes if read literally — nor would any court rule that he must. The courts must instead interpret one of the incompatible regimes as giving way to the other — and it seems clear that the older, 1917 regime would be the one to yield.

There are decisive constitutional as well as statutory reasons for this. The most compelling constitutional reasons are offered by Neil H. Buchanan of George Washington University Law School and Michael C. Dorf of Cornell Law School in a remarkable trilogy of Columbia Law Review articles. (See here, here, and here.)

Buchanan and Dorf point out that the president's unilaterally raising taxes or unilaterally "prioritizing" which bills to pay to comply with the 1917 vintage "debt ceiling" would do far more violence to Congress's prerogatives under Article I of the Constitution than would staying the course with Treasury debt issuance as mandated by the 1974 budget regime. The latter, they argue, is therefore the "least unconstitutional option."

We agree with Buchanan and Dorf's analysis — if the latest manufactured "debt ceiling crisis" is truly a constitutional crisis. We also, with them, endorse the argument offered by President Bill Clinton and others during the last debt ceiling crisis and recently reiterated — that Section 4 of the 14th Amendment to the Constitution, which prohibits legislatively impugning the debt obligations of the United States, nullifies the 1917 debt ceiling regime from its very beginning.

Even granting all of this, however, there are good reasons to expect that the courts would resolve the debt ceiling impasse without resorting to constitutional doctrine. For they could read the 1917 regime debt ceiling as implicitly voided, as a matter of statutory interpretation, by the 1974 regime budget.

Longstanding canons of statutory interpretation support our claim. These axioms were developed precisely to deal with conundrums like the one the nation is now facing.

Legal codes are organic human creations. They evolve over time. So it is not uncommon for codes sometimes to lose internal consistency. The circumstances that prompt legislation are often forgotten as statutes grow old and unused — as the "ceiling" law did until recently. Their logical consequences are equally easy to lose sight of — at least until a once-forgotten provision is put to new, never-intended use. In view of this, the law has developed secondary decision rules for courts and others to follow when confronted with these dilemmas.

One such principle, the "last in time rule," mandates that a later enactment trumps an earlier one when both conflict. Another, the "absurd result" canon, has it that a legislature is unlikely to intend a manifestly unjust or absurd result. A third, known as the "specific trumps the general" rule, says that detailed prescriptions are more likely intended than general policy goals, if read as excluding the former.

All three of these canons converge where the 1974 budget and 1917 ceiling regimes are concerned. Combined, they suggest that the 1917 terms should never be interpreted to mandate default on national obligations that Congress has incurred through budget legislation.

The 1974 regime, of course, was devised after the 1917 regime, just as all budgets, appropriations, and continuing resolutions enacted pursuant to its provisions occur later than earlier ad hoc ceiling-changes with which they conflict.

There are two bases on which the "last in time" rule can justify Obama's continuing to pay national obligations as they come due. As a general matter, the 1974 budgeting regime calls continuing enforcement of the 1917 "ceiling" regime into question — particularly when it presents an obstacle to compliance with the 1974 regime.

In addition, the nation's continuing budget obligations left in place and effectively re-endorsed under the last budget stopgap legislation in March, not to mention its many non-continuing obligations reinstated by that legislation, came after the last legislated reaffirmation of the 1917 regime "debt ceiling" in February. Courts would rule that the March legislation, which avoids default, is controlling.

Turning next to the "absurd result" canon, trying to comply with both the 1974 budget regime and the 1917 "ceiling" regime, would be like attempting to meet a requirement to borrow x and a requirement not to borrow more than y < x. That would be absurd — not to mention unjust, in light of the systematic theft from creditors that attempting to comply with both would entail. A court should accordingly "reconcile" the two incompatible requirements in favor of that which does not lead to an unjust and catastrophic default — meaning the 1974 regime budget.

Turning finally to the "specific trumps the general" rule, the 1974 regime's legislative history reveals that it is meant to address comprehensively what the 1917 regime, even as updated in 1939, addressed only piecemeal — Congress's larger role in the budgeting, spending, taxing and borrowing process that the president had earlier led.

Anyone who has seen a federal budget knows that these required expenditures, taxings and borrowings are painstakingly detailed and specific — in dramatic contrast to an inconsistent requirement that borrowing in aggregate not exceed some arbitrarily selected amount. Requiring the president to rewrite the budget's expenditure or taxation provisions would also do far more violence to congressional budget prerogatives, as Buchanan and Dorf argue, than just continuing to comply with the budget's borrowing requirements.

It therefore makes as much sense under the "specific trumps the general" canon as the "later in time" and "absurd result" canons to disregard the categorical 1917 regime ceiling whenever it conflicts with the detailed 1974 regime borrowing requirement. A court should rule as much.

All rules concerning what to do about apparently inconsistent legislation, then warrant that the president treat the 1917 "debt ceiling" regime, when incompatible with the 1974 budget regime, as yielding to the budget itself and its continuing mandates — which include all obligations Congress has already incurred. If Tea Party Republicans object, they could try their luck in court — and learn how likely a federal judge will be both to grant them standing and hold that a constitutionally infirm, categorically stated 1917 regime trumps a constitutionally impeccable, painstakingly detailed budget determined by 1974 requirements. Particularly when complying with both would not only be impossible, but impose grave injustice and economic catastrophe in the trying.

. . .

[cheesehead]

Here's an article on Washington brinksmanship that gets down to the basic reason why the Tea Partiers will fail: there is something (not the PPACA) that's more important than both partial government shutdown and potential debt default. I think Obama failed to perceive this during his first term when he tried to fulfill his inaugural promise to work with Republicans to achieve compromise, but he now understands how extreme the Tea Party is.

The United States cannot afford to allow the opposition party to repeatedly "bring the nation to its knees in order to get its way".

That, not just some particular piece of legislation such as the PPACA, is what is more important than a shutdown and debt default put together.

That is why the Tea Party will fail. It's operating according to an illusion that its ideology is more important than this nation's governance, and has now overreached.

"Here’s Why President Obama Won’t Negotiate with the GOP"
http://wallstcheatsheet.com/stocks/h...tml/?a=viewall

(BTW, the term "negotiate" in the title is a GOP misnomer. The GOP is currently abusing "negotiate" to mean "capitulate to our demand", rather than the genuine process of achieving compromise.)

(I've added underlining to some passages in what I quote here.)

Originally Posted by Dan Ritter

Standing on the outside, Washington looks something like the Western Front in World War I. Two deeply entrenched and bitterly divided sides, immune to each others’ small-arms fire and only bruised by direct hits from artillery. Democrats and Republicans, locked together in an awkward fiscal death dance by a bureaucratic Gordian knot, have found themselves in a type of brinksmanship in which the defense has the advantage, and as a result neither appears willing to move first.

. . .

... eventually someone will have to lead the nation out of this mess.

That person should be President Barack Obama, but until recently, the president has been unwilling to negotiate with Republicans over the budget and debt ceiling standoff.

(Again, I protest that that is an incorrect use of "negotiate with", which should be "capitulate to" here.)

At a glance, this may seem unreasonable given the enormous stakes involved, but President Obama and many in the Democratic party see a slightly different, if not larger picture than is portrayed by the fiscal impasse itself.

It’s important to point out that only now, ten days after Democrats and Republicans needed to reach a compromise on a spending bill, is the debate re-focusing on explicitly fiscal issues. Debates over how much money should go to what agencies are common — even expected — this time of year, and it was widely anticipated that the GOP would use either the budget or the debt ceiling as leverage to push for long-sought reductions to the nation’s gross spending problem.

If this was all there was to the story, we wouldn’t be here. What makes this situation different is that Republicans — at the insistence of an ultra-conservative faction within the party represented by people like Senator Ted Cruz (R-Texas) — want to defund or delay the Affordable Care Act as a condition of passing a budget or raising the debt ceiling. That is, they want to undermine the healthcare law that was the cornerstone of the Obama Administration.

This strategy is not necessarily unprecedented. Congress, apparently unable to pass a real budget, has been hopping from continuing resolution to continuing resolution for years, passing the fiscal hot potato from one wave of representatives to the next, and along the way a huge number of “dirty” funding bills have been passed. Brinksmanship is by no means a new tactic in Washington, and policymakers on both sides of the aisle have engaged in it in order to get what they want.

But trying to affect such massive change to the president’s flagship healthcare law was a strategy destined to fail from the beginning. The trick with brinksmanship is that whatever the opposition is trying to get in turn for passing a budget or raising the debt ceiling can’t be worth more to the majority party than a shutdown or default. The ACA is clearly worth more to the Obama administration than a shutdown — but what about a default?

The short answer to what could be a very long conversation is: no, the healthcare law is not worth more to anybody than a U.S. default on its financial obligations. But again, if that was all there was to this, we may not be here right now.

What is worth more to the Obama administration than a default is the pursuit of ending brinksmanship all together, eliminating the precedent that the opposition party can bring the nation to its knees in order to get its way, and trying to establish a political environment in which policymakers use the system — not game it — in order to affect change.

As President Obama told reporters last Friday: “I’m happy to have negotiations but we can’t do it with a gun held to the head of the American people.” That is, President Obama believes that the GOP has perverted the American political mechanism, and that if he simply cedes to their demands under these conditions there will be no turning back. Opposition parties from here on out will

would

use the House’s power of the purse to affect legislative change, and that is not a way to run a country.

[only_human]

I read something in the Washington Post on Thursday that really pissed me off. It was in a couple of articles, but I did not notice it anywhere else at that time:
House, Senate Republicans offer competing plans on debt-limit, government shutdown[washingtonpost.com]

The House GOP plan would suspend the debt limit until Nov. 22, the Friday before Thanksgiving, while also forbidding Treasury Secretary Jack Lew from using “extraordinary measures” that his department has used in recent years to extend his borrowing authority for weeks after the ceiling is reached, according to a senior GOP aide who was in the room. This creates a hard “X date,” as financial analysts call the issue, leaving no wiggle room beyond that day.

Things are in flux all the time and I did not know how solid this information was so I did not mention it at the time. But it's revealing isn't it? It means that the brinkmanship is deliberate rather than merely incompetence or something that Boehner was bulldozed into doing because they want to constrain the Treasury so that the next time it is even more effective. They want to know exactly where the edge is so that they can shove everybody right up to it. And why give up such a useful tactic if they can make it more dangerously effective like this?

Anyway, late Friday, I see they are still planning to do this -- even after all the trips up the hill to speak to the president. Nancy Pelosi is quoted about it so it seems to be solid info.

Slow burn. This is about the "full faith and credit/default/unknown territory" that they are playing around with. Not the softer shutdown brink.
Republicans Said to Insist on Conditions to End Shutdown[bloomberg.com]

Under Boehner’s plan, the Treasury Department wouldn’t be able to use so-called extraordinary measures to further extend borrowing authority, creating a hard deadline, said Representative Tom Reed, a New York Republican.

House Minority Leader Nancy Pelosi of California said ending the extraordinary measures “isn’t very smart” because it would limit Treasury’s flexibility.