Jan 5, 2013

Conservatives Should Know Better Than To Dismiss Constitutional Arguments And Call Them Not “Persuasive” or “Convincing”

Michael Dorf, who takes a broad view of the Executive’s powers under Section 4 of the 14th Amendment to avert any debt crises, responds to what he sees as dismissiveness from conservatives, primarily Professor McConnell and Eric Posner, about his views.

Here’s what McConnell had to say about a month ago:

I have never seen a remotely persuasive argument that the president is entitled to borrow money that the Congress hasn’t authorized.  [The 14th Amendment] does not authorize the president to do anything.  And it certainly doesn’t authorize him to violate the clear constitutional provision that requires congressional authorization for borrowing.

And as Professor Buchanan noted last month, McConnell heard the core of our argument over a year ago, so when McConnell says he hasn’t “seen a remotely persuasive argument” he presumably means that he finds our argument unpersuasive, not that he is unaware of our argument.  Yet McConnell’s own reasoning is completely non-responsive to our view, so I’m at a loss to figure out which parts of our argument he finds unpersuasive.

Apparently, there is something about our argument that leads people to say it’s not “persuasive” (McConnell) or not “convincing” (Posner), without feeling any obligation to confront the actual argument or to say why it’s unconvincing.

I know very little about the debt crisis, and Section 4 of the 14th Amendment. However, if the challenge to the ACA taught me anything, it is that one should never dismiss as “unpersuasive” or “unconvincing” constitutional arguments that may prove useful to a powerful political party backed by strong social movements. Flippant attitudes were how the challengers to the ACA were able to take their off the wall idea and bring it onto the wall in record time.

Let’s not make the same mistakes.

Someone, anyone, should provide a cogent constitutional argument why this position is flawed (again I have no clue whether it is or not, but sounding silly is not a fair response).

Update: Title corrected to delete extra “not” (I wrote this post late at night after AALS. My apologies).

Update 2: Mike Dorf has a lengthy post detailing his discussion with Judge McConnell. I’m glad we are having a substantive airing of these issues. To add to my comment above, we now have a President who has not been afraid to employ expansive executive powers in unorthodox ways to achieve certain policy goals. From drones to failing to defend DOMA to selective enforcement of immigration policies, President Obama has not been afraid to flex his muscles to get things done. Minting a coin may not seem that silly if Secretary of the Treasury Krugman proposes it (ok the last part was only partly facetious).

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