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Thomas Rekdal

Judge Posner claims that it is neither possible nor desirable to reduce the growth in entitlement spending below the long-term rate of growth in the economy. Of course, if that is true, he must also be right that our only realistic choice is between higher taxes and higher debt. But I thought that is exactly the contested point, namely whether entitlement spending can be restrained without serious sacrifice to our national well-being. I am no expert on the subject of entitlement growth, but I am a little disappointed to see Posner's assertion offered as a fairly obvious fact, rather than the conclusion of an argument.

Whether the current contention over the debt ceiling is an absurd and illegitimate exercise depends crucially on whether Posner is correct in claiming that there is no acceptable way to reduce entitlement spending. If that is true, the absurdity lies not in Congressional efforts to block borrowing to pay for expenditures already authorized, but in attempting to solve a problem that cannot be solved.

Terry Bennett

Sometimes laws conflict directly with other laws. Such is not the case here. Rather, one law acts as a collateral constraint upon the other, but both laws can be followed up to a point, and that is apparently what was intended by lawmakers. Rules of construction dictate that both laws are to be construed on the assumption that Congress and the President are aware of both of them and mean them to exist in tandem.

New Jersey has a law that says the county tax administrator shall manage the affairs of his office in such a way as to minimize the number of real estate tax appeals. New Jersey also has a law against homicide. The tax administration statute does not specifically forbid the county tax board from shooting people to keep them from filing tax appeals. The homicide statute acts as a constraint upon the tax administrator, limiting his power under the other statute. That hardly makes the homicide statute illegitimate. What Congress and the President are saying is that we shall pay for people's retirement and health care, as long as we don't spend more than a certain amount. The debt ceiling statute predates the Medicare statute, and could have been repealed when Medicare was passed but lawmakers did not choose to do so. If anything, Medicare is an illegitimate means of pushing us past the debt ceiling.

As for Bismarck, socialist is as socialist does.

I have written elsewhere of the capitalism-communism contimuum. If a culture leans too far toward individual responsibility, lesser advantaged people suffer. If it leans too far toward collective responsibility, freedom suffers (taxation is a limit on freedom). How much freedom shall we take from the able, to comfort the less able? That is a question all modern societies must answer for themselves. The rich tend to vote for less, and the poor for more. In our time we are facing critical mass, when the rich are villified and the poor are poised to vote themselves a raise. Right now the compromise is, as George Will has pointed out recently, to keep paying Paul but not bother robbing Peter. With all the suckers lining up to lend us money, we need not worry about raising our collective productivity to pay our debt. The scam can't fail.


I agree with Judge Posner and would recommend that the President and every Democrat on Capitol Hill adopt his argument forthwith.

I do not agree with Terry Bennett on how statutory construction should work in this matter. While statutes should be construed to minimize conflict, a later passed statute controls over an earlier one if there is a conflict. Thus, budget bills or continuing resolutions passed since the last debt ceiling bill should control, even if there is a conflict. If I were the president, that is what I would tell the GOP and dare them to shut the government down or challenge me in court.

Terry Bennett

In further support of my position, I note that Congress and the President ARE expressing respect for the debt limit statute. I have not heard Con Law Professor and President Obama try to make the argument that the Medicare statute preempted the debt limit statute.

These statutes do not conflict. One merely constrains the other. If one statute says traffic entering a circle has the right of way and another statute says traffic leaving a circle has the right of way, that's a conflict of laws. They can't both be right, and "conflict of laws" rules do indicate that the later statute controls. That's not the situation we're discussing here. These statutes can and do simultaneously each have meaning and purpose.

Still, in case Rcf is right, henceforth I shall carefully screen my visitors - it might be the tax board coming for me.


When it comes to "Debt Ceilings" there is an issue being overlooked and that is the idea of "Good Governance". Such that, by establishing a "Debt Ceiling" per se, it introduces a form of inflexibility into Government operations and constrains it's ability to respond to problematic Socio-economic conditions. More often than not in a negative fashion. There is also the problem of "inflation" and it's negative impact on budgeting. Which is part and parcel of the current Budget "Crisis". Especially in the "Big Three" Line Items in the Federal Budget (Defense, Medicare and Medicaid). So the question comes down to, "Do we want a flexible Government that can respond to the conditions of the times or do we want an inflexible Government who's raison d'etre is "Balanced Budgets above all else"?

As for our current "Crisis", my suggestion is an across the board line item cut of approx. 10 to 15 percent, coupled with a closing of tax loopholes. If this is not enough, then in the next budgetary cycle, an increase in the tax rate of approx 10 to 15 percent across the board. By doing such, it requires all players to take on the burden of austerity/funding and "Good Governance".


I agree with Judge Posner that the debt ceiling law is an inherent violation of separation of powers.

While I also agree that Bennet's argument that collateral constraint is an appropriate approach to Congressional intent, I disagree that it applies here, since a debt ceiling, once breached, imposes on the Executive Branch the requirement to decide which bills to pay, hence which laws to consider intact, and which to consider dead. This effectively nullifies prior Congressional action without benefit of a vote, a law, or a veto.

As reductio ad absurdem I would submit that if the current Congress passed a law invalidating all acts of the 73'd Congress (including the repeal of Prohibition), that law -- even with a Presidential signature -- would be unconstitutional and invalid on the same grounds, and at the same time would permit no reasonable way to apply the principle of collateral constraint.

Terry Bennett

I would suggest that with passage of the debt ceiling statute, the intent of Congress was that the ceiling not be breached. I will leave it to the SCOTUS to decide someday whether later laws authorizing spending have in fact preempted the earlier law. If that was indeed Congressional intent, it would have been nice of them to say so.

Unlike the Prohibition amendments, the debt ceiling is not part of the Constitution. It is just a run-of-the-mill statute that can be undone by the same process that created it. In a head to head conflict, the Constitution trumps a statute. So, I agree that Sequel's example would be unconstitutional, for the simple reason that Congress does not have the enumerated power to change the Constitution. That is, again, an example of a conflict rather than merely a constraint. I continue to see the debt ceiling and subsequent spending laws as not in conflict. Both can have meaning and purpose at the same time.

It seems we have wandered away from the point of the original post. I was just pointing out in response to Judge Posner's assertion of its illegitimacy that it was a duly enacted law at the time, and did not reach beyond the enumerated powers of Congress, and every Congress since has had, as our current Congress has, all the necessary and proper authority to repeal it, and they haven't explicitly done so. It would be just fine with me if Congress repealed the debt limit - or better yet, repealed some of the spending.


Salutations, Bennet. Agree with your reasoning ... but with one footnote.

I proposed the 73d Congress because it approved the 21st Amendment to repeal Prohibition. I still presume that invalidation of all the acts of the 73d Congress would extend to that action, raising yet another (tho admittedly absurd) SCOTUS question regarding limits on Congressional power to repeal otherwise permissible prior acts.

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