Levison versus Obama

On "winning arguments" in constitutional law


Sandy Levinson


This just in, re President Obama's "town meeting" at the University of Maryland today:



Mr. Obama for the first time addressed — and ruled out — the idea that the
Constitution empowers a president to increase the debt limit to prevent default and,
as he put it, “basically ignore” the federal law requiring that the debt ceiling be
set by statute. The argument of “the constitutional option,” which President Bill
Clinton — like Mr. Obama a former constitutional law instructor — endorsed in an
interview this week, is based on the 14th Amendment’s provision that the validity of
the United States debt “shall not be questioned.”

“I have talked to my lawyers,” Mr. Obama said, and “they are not persuaded that that
is a winning argument.”

So what does "winning argument" mean in this context? A. An argument that would
persuade the current United States Supreme Court, even if it is spectacularly
unlikely that the Court would in fact ever address the issue, whether on standing or
some other basically prudential grounds. B. An argument that would persuade a
seminar at the Harvard or Yale Law Schools on the general subject of presidential
power? After all, Laurence Tribe, one of Obama's mentors, has powerfully criticized
the argument. But, of course, it is quite unlikely, as an empirical matter, that the
Administration's argument about the meaning of "hostilities" in the War Powers Act
would persuade any such seminars, even if the principal enabler of the
Administration's policy is former Yale Law School Dean Harold Koh. So maybe
"winning" is C. An argument that's at least "good enough" to enable me (the
President) to do what I think is necessary in the current circumstances, against the
background that it would create severe problems for the United States to run the
risk of seeking formal congressonial approval for our open-ended intervention in
Libya. Perhaps the Koh argument passes this test. But, then, why doesn't the Section
4 argument pass this test, especially if one assumes that Obama genuinely believes,
as he must--otherwise there's no explanation, let alone justification, for his
otherwise scandalous "compromise" with John Boehner--that default would be
"catastrophic" for the United States and the rest of the world. Is he really going
to be the most law-abiding President since James Buchanan, who was willing to let
the country (illegally, from his point of view) dissolve because he viewed the
United States as lacking the power forcibly to prevent it? How many lawyes has he
talked to, who are they, and did none of them suggest that former President Clinton,
himself a former professor of constitutional law, might be worth taking seriously as
to presidential "emergency powers"?