In all the discussion of the debt ceiling, I think a really simple point is often lost — namely, that if the debt ceiling is not high enough to account for the debt required to spend all the money Congress has legally obligated the executive branch to spend, there is a contradiction in the law. What the president is doing when he requests an increase (or, in a different way, what the Treasury secretary is doing when he takes “extraordinary measures” to put off exceeding the debt ceiling) is politely asking Congress to resolve the contradiction in a face-saving way. If Congress doesn’t do that, then we are in a self-induced state of exception where the law does not provide guidance — and we all know who makes the decision about how to handle the state of exception!
Now our intrepid sovereign could choose to resolve the contradiction by claiming that the appropriations laws override the debt ceiling — i.e., that Congress implicitly already raised the debt ceiling by requiring the Treasury to spend a certain amount of money beyond what it is allowing the Treasury to take in as taxes. There is no need for an obscure constitutional provision to justify this decision. It’s elegant and straightforward in itself, and it has the benefit of privileging the laws that Congress most recently passed.
If Obama were really concerned to let Congress save face and treat both of these contradictory laws as equally important, there is the (stupid) platinum coin option that has gotten so much play in recent weeks. The solution here would be to say that Congress is requiring us to spend X amount of money but has only allowed us to borrow X-Y amount, and so we solve the problem by printing $Y. This is a solution that I assume a lot of people would have trouble accepting, but it does have a certain rabbinical quality to it that I find attractive.
The very worst decision to make here is to insist that the debt ceiling takes priority over the appropriations laws. As far as I can tell, in the past presidents have pretended they were constrained to favor this option in order to pressure Congress to resolve the contradiction themselves rather than subject everyone to the unedifying spectacle of the executive resolving it for them. This is a nice token gesture toward the separation of powers that I’m sure we all appreciate! But the only reason a president would allow it to be more than a token gesture — the only reason he would seriously cut off spending in order to comply with the earlier debt ceiling law instead of the more recent appropriations laws — would be if he wanted to be “forced” into cutting spending.
I’m not telling anyone anything they don’t already know — it’s pretty much conventional wisdom in the left blogosphere that Obama was just as eager as the Republicans to use the debt ceiling crisis for a misguided “grand bargain.” When we view that as a sovereign decision, however, a particular option he chose out of several possibilities, then I think we can begin to detect a broader strategy of “submerged sovereignty” that characterizes all of Obama’s domestic policy. He has consistently favored exercising power through paths that give the appearance of being constrained.
High on the list here is the fillibuster — had Obama insisted that it be abolished from day one, were there really ten senators who would’ve undermined their hugely popular new president and voted to prevent it if the so-called “constitutional option” (changing the rules with fifty senators plus the VP) were put into play? There were obviously some, but ten? Instead he’s left the job to Harry Reid, arguably the least charismatic politician in history (and yes, I’m counting Boehner). Meanwhile, the only time he’s specifically commented on Congressional procedure was when he called for an up-or-down vote on a a proposal to evade the fiscal cliff — i.e., a situation where he was absolutely determined to give away his leverage by reaching a deal before the January 1 deadline — and lo and behold, both houses of Congress did it!
Meanwhile, of course, he has been happy to flaunt his sovereignty on foreign policy, pointedly refusing to ask Congress for authorization to send troops to Libya (even though it would’ve obviously been granted!) and of course vastly expanding a system of extra-legal robot-based assassinations.
This is the true eleven-dimensional chess, the game of how to maintain the absolute loyalty of his liberal fanbase while consistently delivering results that range from centrist to right-wing. The answer: choose to be constrained, make a sovereign decision to favor the most convoluted and ineffectual method. Surely Obama has seen The West Wing, that consummate “liberal fantasy.” He knows liberals want to feel weak and tell themselves they’re doing their best against the implacable conservatives.
In fact, I wouldn’t be surprised if someone hadn’t calculated that this self-imposed impotence on domestic policy wouldn’t produce a weird kind of backlash effect compelling liberals to support his assertions of sovereignty in the foreign policy sphere — because finally he’s being tough! Look how easily and vociferously people supported the drone war! Here, too, though, we have the language of constraint, of the forced choice between the obviously regretable drone attacks and a full-scale invasion. Again, though, the constraint is self-chosen, as these two options obviously don’t exhaust the field (there is, after all, the option of just “leaving them alone”).
After eight years of George W. Bush, “The Decider,” it appears that we are being shown a different model of sovereignty. Obama’s submerged sovereignty is the passive-aggressive equivalent to Bush’s overt sovereignty — a power that is made more perfect in weakness. The American people burned out quickly on Bush’s aggressiveness, which was initially so seductive in those scary years after 9/11. It’s gotten to the point where it’s easy to forget the guy was ever president at all. By contrast, I have little doubt that Obama’s popularity is going to be even greater and more durable than that of the last Democratic martyr-president, Bill Clinton. Both men understood the simple rule that always eluded Bush: always leave them wanting more.
8 thoughts on “Obama’s submerged sovereignty”
The President is not Sovereign —
In a Democracy only the People are Sovereign.
No, I’m pretty sure the president is sovereign! If the people try to decide on a state of exception, the police beat the shit out of them.
I was listening to On Point this morning with two guest (poli/econ?) profs. At least from what they were saying, Congress doesn’t require the President to spend anything. Rather, Congress authorises the Pres to spend up to $X but no more, to borrow up to $Y but no more, and tax Z% but no more. If that’s the case (I’m not sure if it is and I’m too lazy to do the research), then it does alter the context enough that it would make the first paragraph here a bit different.
Now, perhaps a more relevant comment: what if the majority of American liberals are right-wing neoconservatives like the GOP but don’t want to admit it? That is, they, like Obama, will wholeheartedly support right-wing policies both foreign and domestic as long as they can go home at the end of the day and think they’re different from the Tea Party. It’s much like the gun debate which has unfolded over the past month: the crazy people with guns need to be stopped by ‘good guys’ with guns whereby the crazy, conservative Tea Party policies need to be stopped by ‘sane’ conservative policies.
I don’t think that’s right. Why wouldn’t every president unilaterally cut taxes if that were the case?
The article one of the two guests co-authored is openly accessible: http://www.columbialawreview.org/how-to-choose-the-lease-unconstitutional-option/ . Again, I’m not sure if it’s the case, I haven’t done any research, and I’m lazy.
The other sovereign is of course the mass media: they decide the acceptable exception.
We need to remember Schmitt’s sovereign was looking backwards to a singular loci of power and decision/influence.
The other way to view the sovereign is as Catechon, the restrainer of evil whereby the sovereign exception is analogous to the miracle. So we have the president as miracle-worker when the exception is enacted; yet for a liberal left who do not believe in miracles how can they read the exception?
I’m interested in your take on Obama as a cynical manipulator of power. That is how you see him, right?
I of course don’t “really know” what his motivations are, but it seems to me that that is one plausible reading of the evidence.
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