Analysis and Commentary on Politics

Why President Obama Could Easily Be Impeached Over the Debt Ceiling If Congress Fails to Raise It

Justia columnist and former counsel to the president John Dean discusses the debt-ceiling crisis and how it might play out. Dean notes that if both sides remain adamant in their positions, we will be in unchartered territory, and that President Obama is refusing to negotiate this time around. To make the stakes here clear, Dean describes the impact of failing to raise the debt-ceiling limit. Moreover, citing the work of fellow Justia columnists Neil Buchanan and Michael Dorf, Dean also explains the constitutional and legal problems that will arise if the debt ceiling is not raised, and why its not being raised is a real possibility. Dean also questions whether an out-of-control Congress might even attempt to impeach President Obama if he were to be forced to break the law in order to prevent the U.S. from defaulting, and avert a financial catastrophe.

What Can The President Do When Congress Gives Him a “Trilemma” of Unconstitutional Choices? Understanding Why the President Must Exceed the Debt Ceiling

Justia columnist and Cornell law professor Michael Dorf and Justia columnist, George Washington law professor, and economist Neil Buchanan argue that, faced with a trilemma of unconstitutional choices, President Obama effectively has no choice but to exceed the debt ceiling, and they explain exactly why that is. Buchanan and Dorf describe why, to honor the Constitution, a President must choose to issue debt in excess of the statutory limit, if the budget otherwise requires him to do so. They also argue that even Republicans in Congress should want the President to issue more debt, if Congress itself is unable to find a way to do its duty and increase the debt ceiling as needed. In their analysis, Buchanan and Dorf also invoke the idea that some choices are more unconstitutional than others; constitutionality, in other words, isn’t just either/or.

A Mismatch Between Tax Politics and Deficit Rhetoric: A Very Bad Tax Deal Is Passed by Politicians Who Do Not Understand the Economics of Deficits

Justia columnist, George Washington law professor, and economist Neil Buchanan sharply critiques the tax deal that was just passed. Buchanan contends that the big picture here is very different from that painted by Beltway insiders in the run-up to the deal, in important ways. To support his points, Buchanan covers the basics of the deal; points out that merely because both sides were disappointed does not mean that a good deal was struck; and questions the need for the deal in light of the fact that the long-term budget situation looks significantly better than most people think, in part because certain pessimistic assumptions about health-care costs have so far not proven true.

A Necessary Beginning To Ending Capitol Gridlock: Filibuster Reform

Justia columnist and former counsel to the president John Dean urges that filibuster reform is vitally necessary if the nation is to get Congress working again. Dean places the problem squarely on Republicans’ shoulders, and describes the Party’s filibuster abuses. He also notes the baleful effect of the Republicans’ use of the filibuster upon the judicial confirmation process, triggering an emergency situation in the judicial branch. Dean comments on what effective filibuster reform would look like; contends that there are no strong arguments against it; and explains the so-called “nuclear option” that Democrats still could invoke if they so chose.

How Many Times Will Speaker Boehner Save President Obama From Himself? The Budget Negotiations Show That the President Is Still a Center-Right Politician Elected by Center-Left Voters

Justia columnist, George Washington law professor, and economist Neil Buchanan argues that while President Obama appeals to voters on the left and in the middle, his economic policies are actually center-right—which might be a surprise to some of his constituents. Moreover, Buchanan points out that Obama has several times compromised with himself, rather than with the Republicans, in key negotiations, thus losing ground that, Buchanan suggests, didn’t need to be ceded. Buchanan also takes Obama to task for lacking the will to increase tax rates on the wealthiest taxpayers.

The Ultimate GOP Obstructionism Is Secession, but That Will Never Happen

Justia columnist and former counsel to the president John Dean comments on the sharp post-election increase in the number of petitions that have been sent to the White House by Americans, seeking certain states’ secession from the Union—totaling 22 states, thus far. (Generally, the Obama White House, via its “We the People” digital forum, welcomes any American to start or sign a petition addressing an issue that concerns him or her, and in some cases, the Administration has responded.) But Dean explains why the secession petitions are—and should be—doomed to fail, as well as being patently unconstitutional, unpatriotic, and illegal. To claim otherwise, as would-be secessionists do, Dean notes, is to utterly ignore the Civil War and the Fourteenth Amendment. Dean also paints a frightening picture of what post-secession America would be like, in the states that had seceded, if the petitioners were to somehow get their wish.

The Fiscal Cliff Is a Sideshow, but the Debt Ceiling Is the Main Event: If House Republicans Refuse to Raise It, the President Should Show Them What Discretion Really Looks Like

Justia columnist, George Washington law professor, and economist Neil Buchanan comments on President Obama's options regarding the debt ceiling—noting that they are much better than one might think. Buchanan contends that Republicans may think that they can force Obama to cut spending, in order to avoid breaking through the debt ceiling, but Buchanan points out the other options that the President still has, and explains why none of these options will be appealing to Republicans.

Why Grover Norquist’s Anti-Tax Pledge Is Unenforceable and Unconstitutional

Justia columnist and former counsel to the president John Dean takes strong issue with the Norquist Pledge, which Washington lobbyist Grover Norquist has asked Members of Congress to sign. The Pledge says, “I [insert name] pledge to the taxpayers of the state of [insert name], and to the American people that I will: ONE, oppose any and all efforts to increase the marginal income tax rates for individuals and/or businesses; and TWO, oppose any net reduction or elimination of deductions and credits, unless matched dollar for dollar by further reducing tax rates.” The Pledge has become significant in the context of raising taxes as a solution to the potential “fiscal cliff” crisis. Dean contends that the Pledge is not only a bad idea, but also one that violates the Constitution. Moreover, Dean points out that, as the pledge is not a valid contract, for it is missing key elements that contract law requires, it is also not enforceable as such.

In Search of an Agenda for Obama’s Second Term

Justia columnist and Cornell law professor Michael Dorf comments on the interesting question of what President Obama’s agenda should be, now that he has been re-elected. Past presidents have often faced scandals in their second terms, Dorf notes, but assuming that Obama avoids that fate, what should his top priority be? Dorf argues that it should not be a grand bargain addressing the federal deficit by lowering spending and increasing taxes, as the options currently on offer in that vein could actually be harmful in the short run, and inadequate in the long run. Instead, Dorf says, Obama’s key agenda item should be cost internalization when it comes to health care. That would mean that we would move toward a health-care system in which the people who profit from health-care measures (doctors and patients) also bear the cost of those measures. Although we may already be headed in this direction, Dorf notes, there is much more to be done along these lines.

The Politics of Polarization and Obstructionism

Justia columnist and former counsel to the president John Dean takes strong issue with Republican polarization and obstructionism. Moreover, Dean explains why and how these strategies have worked for Republicans over the years, tracing them back to Newt Gingrich and his supporters, who innovated a three-day work week for Representatives, with their families living in their home districts—the result of which, Dean points out, was that Representatives did not get to know one another well, and there was little chance of collegiality. Now, too, Dean observes, Republicans are also employing obstructionist and divisive tactics. Dean urges that, in light of these developments, it's urgent that journalists and other s chronicle and expose these strategies. Dean is confident, though, that in President Obama, the obstructionists have met their match.

Brinksmanship or Statesmanship: The Looming Fight at the Edge of the “Fiscal Cliff”

Justia columnist and Cornell law professor Michael Dorf comments on the fiscal cliff—the combination of higher taxes and across-the-board spending cuts that America faces if Congress and President Obama fail to reach agreement in the next few months. Dorf explains exactly what the cliff is, how we came to its edge, and why there is no guarantee that our elected leaders will avoid taking us over the cliff. In so doing, Dorf addresses both aspects of the cliff—higher taxes and spending cuts—and the deadlines that pertain to each. Dorf also addresses the question whether compromise is possible on these issues, and explains why the outcome, if there is no compromise, may have stark consequences, as everyone involved knows—and yet still might occur.

What Do We Really Owe to Future Generations? The Devastation of Hurricane Sandy Exposes the Fallacy of Focusing on the Federal Government’s Deficit and Debt

Justia columnist, George Washington law professor, and economist Neil Buchanan connects the election, Hurricane Sandy, and the well-being of our children and the children of future generations of Americans. Analyzing a Romney/Ryan ad that had expressed worry about “saddling our children with debt,” Buchanan warns that what might be truly worrisome would be, conversely, to fail to spend money in ways that will improve the lives of future generations, with infrastructure high on the list. Buchanan cites Hurricane Sandy as an example, arguing that if floodgates are indeed necessary to protect New York City, then even if taking on debt would be necessary, the floodgates should be built. Buchanan also generalizes his point to apply to other infrastructure and other inter-generational government programs.

Does the Republican Party Want to Win? If So, Some Suggestions

Justia columnist and Cardozo law professor Marci Hamilton comments on Mitt Romney’s election loss and on the future of the Republican Party. Hamilton ascribes the loss, among other factors, to Republican candidates’ widely criticized comments on rape and abortion, which many found deeply offensive. She also points to other factors such as (1) Republicans like Paul Ryan’s extreme views, such as the refusal to have the government fund any part of Planned Parenthood’s activities; and (2) the Party’s lack of a laserbeam focus on key issues like jobs and the state of the economy. The result was that women disproportionally voted for President Obama, Hamilton concludes. Hamilton also raises interesting questions about whether—and how—the Republican Party can reshape itself as a viable party, now and in the demographically diverse future—a party that could, in coming years, attract women and people of color in larger numbers.

Governance by a Party With a Leadership That Has Been Taken Over by Sociopaths: The Fourth and Final Column Analyzing What Mitt Romney Would Do As President

Justia columnist, George Washington law professor, and economist Neil Buchanan argues that the GOP leadership’s current stances are—as Nicholas Kristof also characterized them recently in The New York Times—sociopathic. Buchanan cites examples including the position that illegal aliens should be made so miserable that they will “self-deport,” even though their children too will suffer; and the position that aid to America’s poor should be sharply curtailed, even though that, too, would harm innocent children, with even children’s nutrition programs on the list to be cut. Buchanan takes issue, too, with proposed Romney/Ryan programs that would, he argues, only intensify social inequality, including ones targeting healthcare for the elderly.

How Mitt Romney Forgot His Legal Thinking at the Hofstra Debate

Justia columnist and former counsel to the president John Dean notes that Mitt Romney attended both law school and business school, and contends that Romney forgot to think like a lawyer at the recent Hofstra debate. Before commenting specifically on Romney, Dean addresses the controversy about whether lawyers think differently than other people. One position is that thinking like a lawyer is simply thinking clearly and critically; the other position is that thinking like a lawyer is a unique skill that only those who have learned that skill in law school possess, in part because lawyers are taught to follow past precedent, even if they think it is wrongly decided—which is not the case in other professions. Dean notes that lawyers must also meet the requirements of the bar, and follow the jurisdiction’s Rules of Professional Conduct. While Romney is an attorney, Dean argues, he is much more of a businessman, and Dean notes that GOP businessmen have, over history, fared poorly in the Oval Office, and cites both Herbert Hoover and George W. Bush as examples.

Binders for Women, Blinders for Romney

Justia columnist and Hofstra law professor Joanna Grossman comments on the second presidential debate, and especially on Mitt Romney’s now-famous comment about “binders full of women,” which has now become an Internet meme. Grossman argues that the comment reveals Romney’s dated and uninformed view of women in the workplace. She also notes that Romney, while avoiding the question about pay inequity that led to the “binders” comment, revealed that he believes that the only workers who need flexible schedules are women, apparently due to the assumptions that all women have children, and that only women perform child care.

Would I Lie to You? In the Debate and Elsewhere, Romney and Ryan Exploit the Manipulative Tactics of Car Salesmen (With Apologies to Car Salesmen)

Justia columnist, George Washington law professor, and economist Neil Buchanan comments on why President Obama was widely perceived as losing the first presidential debate. Buchanan, who himself has a long history as a debater and debate coach, contends that one important problem for Obama was that Romney frequently said things that were outright false, and yet, Obama could not call him a liar, for that would run afoul of Americans’ tendency to believe what other say, and their aversion to call a person on falsehoods, because it seems so rude to do so. Buchanan thus contends that Romney’s debate tactics preyed on Americans’ deep-seated tendency to believe the best of others—and argues that Ryan uses similar argumentative strategies as well. In the first debate, Buchanan notes, Obama opted not to say “You’re lying, Governor,” as some commentators thought he should have, in retrospect. That raises an interesting question: Will he do so in the next Presidential debate?

The First 2012 Presidential Debate: How the Incumbent Got Trapped

Justia columnist and former counsel to the president John Dean argues that Mitt Romney’s win in the first presidential debate will prove to be a Pyrrhic victory, which will also help the Democrats. Dean discusses presidential debates from their very beginning, with Kennedy versus Nixon in 1960, up to the present. In commenting on the first Obama/Romney debate, Dean describes the “incumbent’s trap,” which he defines as the ability of the challenger to force the incumbent to defend his record—for even a strong record can be criticized, and as Americans, we can be unrealistic about what we expect our presidents to accomplish while in office. Meanwhile, the challenger can promise voters the moon. Numerous incumbents, Dean notes, have fallen into this very trap, though in Clinton/Dole, Clinton managed to avoid it by dominating the debate. Dean then analyzes the Obama/Romney debate—arguing that it needed much more moderation and fewer open-ended topics. Ultimately, though, Dean contends that Obama’s loss there will have a silver lining: Post-debate, the Obama team can now correct the many instances where Romney stretched or outright ignored the truth, and Democratic voters will be reminded that an Obama win is far from a foregone conclusion.

The Rich, the Poor, and Changes Over Time: How Mitt Romney’s Condemnation of People Who Pay No Federal Income Taxes Conflicts With a Republican Talking Point About Income Mobility

Justia columnist, George Washington law professor, and economist Neil Buchanan debunks Republican presidential candidate Mitt Romney’s claim that 47 percent of Americans don’t pay taxes. First, Buchanan points out that virtually all Americans pay taxes every year, if one counts payroll taxes, excise taxes, indirect taxes, state and local taxes, corporate taxes that are passed on to workers in the form of lower wages, and more. Second, Buchanan notes that, over a lifetime, a person may, for very good reasons, have non-taxpaying years—for instance, when he or she is a student—mixed with taxpaying years, suggesting that Romney is wrong that non-taxpaying is always a part of a culture of victimhood. Buchanan also contends that it is a contradiction for Republicans to look at income mobility in America over time, and yet to look at only an annual snapshot when it comes to income taxes.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in con... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Befo... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavi... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior... more