Trump Archives - Keller Glass

The Debt Ceiling is Unconstitutional

I’d like to put forward a proposal to stop the recurring manufactured crisis that is the debt ceiling.

Stop pretending it’s legal.

In this era of increased partisanship and stochastic violence, there’s also the pervading sense that our legal institutions are straining under their own weight. If we’re looking for root causes, we should consider the many extra-constitutional features of the nation’s political institutions as currently constituted. For starters, political parties as a legal unit of governance. The framers did not predict the emergence of parties and a few warned us directly of their malevolent influence on the republic once they emerged. George Washington famously called them, “potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people.” Add to this state-wide apportionment of electors in presidential elections, the filibuster, constraining the house membership to an arbitrary number set a hundred years ago, and you start to get a picture of the elements of our current political system that are not in the Constitution and, in fact, are often used to subvert the Constitution’s underlying principles of popular sovereignty and majority rule.

But even these ailments, bad as they may be, are not unconstitutional per se; they are omissions. They are the results of institutions and political parties taking advantage of gaps in our founding documents.

The debt ceiling, on the other hand, violates the Constitution ipso facto.

To understand why, let’s do a quick Constitutional refresher on the relevant sections: In Article I, Congress passes laws. In Article II, the president executes those laws, hence the “executive branch.” The relationship between Congress and the executive is crystal clear in the Constitution. It charges the president with the duty to “take Care that the Laws be faithfully executed.” We may live in strange times. Trump may claim the right to impound funds. Stephen Miller may claim “plenary authority” for the president. But we must remember the framers’ clear intent that the president’s duty is to execute laws passed by Congress. This includes laws concerning spending and debt.

The 14th amendment addresses the public debt directly, “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” The current Supreme Court likes to pretend the 13th, 14th, and 15th Amendments don’t exist, but they are just as binding as the bill of rights. On the question of debt the 14th Amendment provides an explicit directive: it is unconstitutional for the government to refuse to pay public debt. Supreme Court case Perry v. United States affirmed this interpretation of the public debt clause. Writing for the majority, Chief Justice Charles Hughes characterized “the expression ‘validity of the public debt’ as embracing whatever concerns the integrity of the public obligations.”

It’s worth noting that the 14th Amendment addressed the concern that former confederates reentering the federal government would refuse to pay the public debt as payback for Congress invalidating Confederate debt or to hold the budget hostage to gain political concessions (sound familiar?)

It’s worth taking a moment to consider the precise chain of legal obligations at work here. The constitution states the president must follow the laws set forth by Congress, and that neither Congress nor the president may question the validity of the public debt. Congress collects taxes and duties to fund the government. Congress passes a budget, which is just a law instructing the executive branch how to spend those funds.

We may not agree with specific policy decisions made along this chain of commitments, but this is how the system is supposed to work. Trump’s illegal acts in office notwithstanding, the president can’t refuse to spend the money specified in the budget, both because of his Constitutional obligation to “take care” that the budget he signed into law is faithfully executed, but also because the 1975 Impoundment Act specifically forbids it. He also can’t raise taxes to fund the budget; that power is granted to Congress in Article I, Section 8 of the Constitution. (The same section renders Trump tariff-by-executive-order scheme unconstitutional, but that’s a subject for another day). He can’t print more money; Congress vested that power in an independant (for now) agency. The only option is to borrow money within the statutory limits of the budget.

Enter the heel in our melodrama, “The Debt Ceiling.” Congress now passes a different law, separate from the budget. Contrary to much of the rhetoric around the issue, the debt ceiling has nothing to do with spending. It simply forbids the president from borrowing money once the debt reaches an arbitrary threshold. In effect, Congress has spent more than it collected in taxes, borrowed money to cover the difference, and then told the person responsible for writing the checks to stop paying the bills. If this sounds a lot like Congress calling the public debt into question, that’s because that’s exactly what it is.

This puts the president in an impossible position. Congress is, in effect, forcing the President to choose between two different ways to violate the Constitution 1) ignore the debt ceiling to meet the 14th Amendment obligation, thereby violating the budget law 2) accept the debt ceiling and ignore the budget, thereby violating the 14th Amendment. In both cases, Congress has directed the president to break a law, which also forces the president to violate the aforementioned “take care clause.”

In our system, we call laws directing the executive branch to violate the Constitution “Unconstitutional.”

Every president who has had to deal with this legal knot, thus far, has chosen option two in the hopes that there is enough slack in the system that they will not have to actually default on US debt. Both political parties have consented to this state of affairs because it allows them to extract policy concessions when they are in the minority by holding the government hostage.

For Republicans, it’s a win-win. Shutdowns reify Republican’s accusation of government incompetence and chaos, so they either get what they want in the policy negotiations or they get thrown into the proverbial briar patch. The motivations for Congressional Democrats are more complicated. Shutdowns cause major policy headaches when they occupy the Whitehouse, effectively opening a whole new round of budget negotiations. More generally, shutdowns portray the government as dysfunctional (which, in this case, it most certainly is). People are more likely to blame shutdowns on the party advocating governmental competence and the status quo.

In the face of an ever-increasingly authoritarian president, however, Democrats are reluctant to give up any levers to check the executive branch while they are in the minority. Some Democrats may be grateful for the opportunity the debt ceiling affords to stick a thumb in Trump’s eye. Fair enough. But taking a step back, it’s hard to see how assenting to the debt ceiling has been anything less than a disaster for Democrats. Further, it’s hard to see how it will work out any better for them in the future. Yes, the public may blame Republicans for shutdowns occasionally, but shutdowns generally give the public the impression of a political system lurching uncontrollably from one self-inflicted crisis to the next. This makes voters gravitate towards reform/change candidates and away from candidates advocating for basic government functions: e.g. Democrats. Meanwhile Republicans will continue to use this process to extract policy preferences outside of normal legislative and Constitutional processes. This is a fight on Republicans’ turf, and Democrats are fools to continue to fight here.

Trump’s actions during this particular shutdown illustrate the dangerous power vacuum that bad actors can exploit when Congress abandons its Constitutional role. Trump’s decision to pay military personnel with money siphoned from research and development funds may sound like a good-faith effort to support the people who protect us, but it violates a foundational principle of the Constitution. It’s the People’s money and the People choose how to spend it through their representatives. If the executive can spend money the People have not allocated, and pay for it with funds the People set aside for a different purpose, then the president is no longer “executing” the will of the People: he is executing his own will. We kinda’ fought a Revolution over this issue. We shouldn’t be so quick to abandon it.

So, what should Democrats do?

Democrats should state clearly that the debt ceiling is Unconstitutional. They should seize this superseding principle and refuse to get bogged down in the weeds of extra-legislative budget debates. Say it clearly, if any president chooses to shut down the government or honor the nation’s debts, they are violating the law and the Constitution.

Use the occasion to make a simple point on the national debt: Tax. The. Rich. Government shutdowns are unpopular. Austerity measures are unpopular. By refusing to engage in the process that creates these unpopular outcomes for voters, Democrats will leave Republicans holding the bag. They will also set themselves up for a winning platform built on the pillars of Fairness, Reform, and the Constitution.

Is Trump a Fascist?

If we’re going to call someone a fascist then we should come up with a working definition of fascism, and man alive is that harder than it sounds. I won’t bore you with the academic hand-wringing over defining fascism. Suffice it to say, there are many contradictions and ambiguities built into the term.

For our purposes, I condensed the general traits of fascism down to a consensus list of ten traits. In no particular order:

Nationalism, and more broadly, viewing the world as a zero-sum competition between ethnically-defined nations.
Idealization of a lost “golden age” of the nation’s past. Teutonic Age for the Nazis; Roman Empire for the Fascists in Italy; the Spanish Empire for Franco.
Authoritarian, charismatic leader. And by “authoritarian,” let’s say we mean someone who thinks that the executive function of government should supersede the judicial and legislative functions.
Violence as a legitimate means to achieve both domestic and international objectives.
Militarism, often a military-style organizational structure that includes current and former military personnel, coupled with a nakedly expansionist foreign policy.
State control of the media.
Nationalization of industry, but without the class warfare rhetoric of communism, and often with the consent of the business community.
Comes to power in the aftermath of a national trauma. Appeal to voters promotes narratives of slights to the dominant ethnicity by internal and external scapegoats.
Ambiguous religiosity, but a great deal of overlap with Christianity’s conservative values and willingness to co-opt religion or create state-sanctioned religions if it suits the needs of the regime.
Total disdain for human rights, democracy, labor rights, intellectuals, modern art and feminism.

My frame of reference here is Franco’s Spain, Mussolini’s Fascist Italy (capitalized because that was the actual name of the party), and of course Nazi Germany.

It’s worth considering for a moment that most dictatorships have a passing resemblance to fascist regimes. This is because of the simple mechanics of running an authoritarian regime. For example, most dictatorships are at least internally militaristic for the simple reason that they cannot survive without the support – if not the direct control – of the military.

So, how does Donald Trump line up? Let’s walk through these.

1. Nationalism – check

“America First.” It’s worth noting that this phrase was first prominently used by the anti-war coalition in the run up to WWII. This group was sympathetic to Nazi Germany’s policies and was blatantly anti-Semitic. I’m willing to give Donald Trump the benefit of the doubt that he wasn’t aware of this connection the first time he used it. I’m not feeling so charitable about him using this line in his inaugural address after that connection had been widely reported in the media.

2. Idealization of the Nation’s Past – check

“Make America Great Again.”

3. Charismatic/Authoritarian Leader – check

Donald Trump has shown little understanding of the separation of powers enshrined in the constitution and has attempted to delegitimize (a) every court ruling against his interests, personal, governmental, or otherwise (b) any expression of political will contrary to his interests (c) any effort by Congress to rein him in.

4. Violence – check

Donald Trump largely condoned (or refused to denounce – take your pick) violence towards protesters at his political rallies during the campaign. He often speaks in very violent language. Phrases like “American carnage” give his supporters the impression that the are victims of violence and should respond in kind. This is very similar language to both Mussolini and Hitler. Franco didn’t need to hint at this because he came to power in the midst of a real war.

5. Militarism – meh

I’m going to give Donald Trump a pass on this one. While he has expressed a desire to use military power to take other countries’ natural resources – “we should have taken the oil” – his general tone is more isolationist than expansionist. He does not come from a military background and does not exhibit the obsession with military hierarchy and uniforms that was a hallmark of European fascism, despite his attendance at military school.

6. State Media Control – check

Trump’s constant berating of “the media” covers both scapegoating and a sense that we would all be better off if “the media” would just cover his side of the story. I have no doubt that he would crack down hard on the press if it weren’t for America’s vigorous 1st amendment protections.

7. Nationalization of Industry – meh

While the Nazis shared The Donald’s chummy ties with the country’s banking and industry moguls, I don’t think it’s fair to compare Trump’s laissez faire economic policies with fascists’ aggressive, centrally-controlled economic vision.

8. National Trauma/Scapegoatism – check

“National carnage” – “bad hombres” – “they’re rapists” – “stealing our jobs” – The Donald’s world view is a dystopian hellscape with fifth column liberals traitorously betraying “real” Americans to the hordes at the gates. It is remarkable how slight a trauma tipped us into this kind of language considering the difference in scope between the Financial Crisis and the combined effects of WWI and the Great Depression.

9. Ambiguous Religiosity – check

Trump has no idea what 2 Corinthians is, but thinks Christians should have priority over Muslims in immigration policy. He has also made comments about returning to the days of automatic church attendance. This despite his rather hedonistic past and repeated divorces. He is not a Christian, but he understands and values rote religious practice.

10. Disdain for Human Rights, Intellectuals, estc – check

I’m not going to list all the horrible things he’s said for the sake of making this argument. It’s clear that the only human rights Trump cares about are the rights of white, Republican-voting Americans.

So, Trump’s fascism score is an 8 out of 10.

To be fair, the military organizational structure and nationalized industry are defining features of fascism. By those measures Trump doesn’t line up. If you call Trump a fascist, then Italy’s Berlusconi was a fascist, and that doesn’t quite pass the smell test.

Of course, that doesn’t mean we shouldn’t be worried. Defining a movement as fascist is to some extent academic. There are plenty of evils in the world besides fascism. I’m sure the poor souls toiling in the killing fields of the Khmer Rouge took little solace from the fact that they were not living under a fascist regime.

And it’s worth considering that each of the big three European fascist rulers had their own paradoxes and contradictions that make it difficult to fit them neatly into a fascist box. The story gets even more confusing if you include fascist movements from occupied countries like France and eastern European fascist movements like Romania’s Iron Guard.

Each leader subsequent to Mussolini picked the elements that fit his particular political situation, and Mussolini was in turn re-influenced by Nazi Germany. Franco, in particular, probably wasn’t personally a fascist, but he was perfectly willing to use the framework of fascism to kill thousands of people and implement a regime that lasted until his death in the 70’s.

So, perhaps we’re asking the wrong question. Though less catchy, the better question is “what are Trump’s goals and how do those goals differ from American values?” This is really a question we should ask of all our leaders and, to that end, the fascist comparison is a good one, because it forces us to consider the underlying policies and goals of this political creature, Trump, that is so difficult to pin down on anything.

If we think about fascism in the context of its history and as an iterative, malleable ideology, then it matters less that Trump check off every single on the fascist check list. In this view, we land on a terrifying prospect:

Mussolini comes to power in Italy 1922 – Fascism 1.0

Hitler comes to power 1934 – fascism 1.1

Franco takes command of nationalist forces in Spain 1936 – fascism 1.2

Hitler invades Poland 1939 – fascism 2.0

Mussolini declares war on Britain 1940 – Fascism 2.1

Franco adjusts his political stance to shed de jure fascism 1948 – fascism 3.0

Trump comes to power 2016 – fascism 4.0?