TWO IDENTICAL CONSTITUTIONAL NEGATIVES YIELD A
UNIQUE CONSTITUTIONAL POSITIVE LIMITATION ON IMMUNITY
The omission of these two parallel phrases constitutes a serious analytical deficit, which has caused flawed constitutional analyses of the Public Debt Clause whether one approaches the question from the standpoint of original (specific framers’ legislative) intent, linguistics, historical or contextual literalism, or socio-political norms. The above highlighted phrase “shall not be questioned” occurs exactly twice in the entire United States Constitution. Such an insulation from “question” occurs so rarely as to be all but absent elsewhere, throughout the entire U.S. Code and two hundred thirty-five years of legislative and judicial history since the Declaration of Independence(1).
No responsible or complete constitutional analysis of §4:1 of the 14th amendment could possibly ignore the one parallel occurrence in American law of the phrase “shall not be questioned,” and here I now offer the first step towards the very first responsible and complete constitutional analysis of what Michael Abramowicz has christened “the Public Debt Clause”(2): in linguistics as in mathematics, the combination of two negatives yields a positive if by cross-multiplication, and a deeper negative if by simple addition.
Because explicit reference is absent from the legislative record known to me at the present time, I do not know whether the first Reconstruction Congress which debated, framed, and voted on the Fourteenth Amendment intentionally related the phrase “shall not be questioned” to Article I §6:3, but the coincidence is striking and conceptually significant: Congress has the “power of the purse” under Article I, including the power to borrow. The power belongs to no other branch of the Federal Government (and should not, either under John Locke’s theory of separation of powers or Georges Dumézil’s theory of tri-functional power elites in Indo-European Society). Section 4 Amendment XIV limits Congressional Power under Article I.
The inferential conclusion that the relatedness of the two “shall not be questioned” clauses relating to Congressional Power in regard to the debt both rises beyond the realm of coincidence: The Fourteenth Amendment expressly cancelled out the Sovereign Immunity of the Federal Government, especially and particularly (but not limited to) the legislative immunity of Congress (which was the only express immunity granted under the Constitution): these two negative elements of the equation really do yield a positive product, and that positive product is the title of this paper: “When the valid public debt of the United States is questioned, Congress must answer.”
One of the primary purposes and results of the Fourteenth Amendment was radically to limit the sovereign immunity of the individual states of the Union, which from the adoption of the Fourteenth Amendment forward held to be bound by the same limitations in the Bill of Rights as the Fourteenth Amendment. In other words, the Fourteenth Amendment, when originally adopted, does not appear to presuppose or presume any immunity on the part of the U.S. Federal government from actions for the enforcement of the Constitution, even though the Civil Rights litigation passed under the Fourteenth Amendment only expressly created civil causes of action and criminal prosecution for state official violations of the Constitution.
The result suggested here is that §4:1 of the 14th Amendment can and should be construed as a waiver of Federal Congressional immunity as well. Plaintiffs can and should sue each member Congress individually or all members of Congress jointly and severally for breach of fiduciary duty in exposing the valid public debt of the United States to any question regarding payment or dishonor. Plaintiffs can also sue each member of Congress (as well as each officer of the Executive Branch) for an express finding, holding, and declaratory adjudication (Constitutional Declaratory Judgment) that Amendment 14, §4:1 directly amended Article I, §6:3.
By this equation of two negatives yielding a positive, Congressional immunity has been waived as regards the validity and sanctity of the public debt of the United States. Without an absolute guarantee to payment made by a government which keeps its promises, the entire “full faith and credit” of the United States is tarnished beyond recognition and indeed beyond utility or meaning of any kind: a government (like an individual or corporation) which is temporarily fiscally insolvent but honest and trustworthy may reorganize (under something like the principles of Chapter 11 of the U.S. Bankruptcy Code), but a government, again like an individual corporation, which is morally bankrupt can only be liquidated and dissolved and power returned to the people to start over again (on analogy, perhaps, with Chapter 7 of the Bankruptcy Code).
Accordingly, all U.S. Bondholders and beneficiaries of Social Security and Medicare Part A have a right to sue for actual or threatened injury to the value of their investments in the United States Bond and Equity Trust markets (which for most of the population are limited to the Social Security Trust and Medicare Part A).
If the Constitution be read as a single coherent text, then the analogy of crossmultiplication is more apt than mere addition, and the crossing of the notions that members of Congress shall not be questioned for their actions with the later prohibition on the questionability of the public debt seems most likely to mean that Congress loses its immunity to “question” (i.e. suit) when the validity of the public debt comes into question.
THE 2010 DEBATE ON PRESIDENTIAL POWER WAS MISGUIDED
For reasons having everything to do with the “Imperial Presidency”(3) psychology of modern America, and absolutely nothing to do with the U.S. Constitution, the debate over the past several months centered around the power of the President to utilize this clause to circumvent perceived Congressional impotence to escape from indecision. (Obama wisely refused ever to discuss this matter, even when invited to do so).
The President, under the Constitution, in fact bears no specific power or responsibility to raise money (either by borrowing or taxation), or to allocate money for spending or to balance the budget. Such power and responsibility resides entirely with Congress.
Every Congressional leader who advocated allowing the President to “dictate” the terms of a budgetary compromise in effect sought to “pass the buck” by abdicating all Article I powers to the executive. Such abdication could only result in an “Imperial Dictatorship.” Harvard’s Professor Laurence H. Tribe correctly pointed this out in his now famous July 7, 2011, article “A Ceiling We Can’t Wish Away” published in the New York Times when he wrote, The Constitution grants only Congress---not the president---the power “to borrow money on the credit of the United States.” Nothing in the 14th Amendment or in any other constitutional provision suggests that the president may usurp legislative power to prevent a violation of the Constitution. Moreover, it is well-established that the president’s power drops to what Justice Robert H. Jackson called its “lowest ebb” when exercised against the express will of Congress(4).
Thus, the only Constitutionally possible role the President might have had in connection with the budget crisis, aside from negotiation and discussion, was to order the Attorney General to file suit on behalf of Secretary of the Treasury, the Trustees of the Social Security Administration, and the Secretary of Health and Human Services to compel the individual members of Congress, or Congress as a whole, to honor all government bonds as well as those commitments and undertakings (or, in the modern parlance, “entitlements”) which, in the Anglo-American Common Law Tradition, should be considered as vested trust interests to income from paid up property placed by the people in trust. The Constitution assigns the responsibility to the executive department officers named (including the President) to “take Care that the Laws be faithfully executed,” (Article II, §3:4), and that this includes but is not limited to insuring that “the validity of the public debt of the United States shall not be questioned” under the Fourteenth Amendment.
The President would have had this power, to bring suit (on behalf of the Trustees and the beneficiaries) against Congress to compel action to secure and so “remove any question” concerning the validity of the public debt of the United States, because (1) it is the President’s (Executive Department of the Treasury’s) obligation actually to pay (issue checks) on the United States Bond debt and (2) the Trustees of the Social Security Administration act directly under his supervision and authority within the Executive
Branch (as do the Administrators of Medicare Part A).
However, again applying the common law of contracts and trusts (and constructive trusts resulting from fraud) to the government as they would be applied to private corporations or to the taxpaying (or, in terms of political representations—the trust contributing) people, the beneficiaries of the Social Security and Medicare Part A trusts ALSO have direct standing (as do the beneficiaries of any trust) to sue Congress adequately to fund full and specific performance of the executive branch trustee’s obligations under these entitlement programs.
APPLYING THE COMMON LAW OF TRUSTS & TRUSTEESHIP
Anglo-American Common Law provides a ready analogy and relevant guiding principal here: a trustee commits a breach of fiduciary duty when the trustee repudiates (or fails to pay) a valid debt and this repudiation results in direct injury to a trust beneficiary (c.f., e.g., Lattuca v. Robsham, 442 Mass. 205 (Mass. 2004)).
If we accept, for a moment, the somewhat exotic if not downright “revolutionary” proposition that the common law of contracts and trusts (and fraud) applies equally to the government as to the people, then Social Security and Medicare Part A are at the very least “constructive trusts,” even though, politically speaking, they held out to the American People as “Express Trusts.”
In an ordinary private trust, there is typically no “separation of powers” problem such as that which makes the relationship between the Article I Congressional powers to enact laws to raise revenue, borrow money, set monetary policy, “regulate commerce,” and appropriate money from the treasury (Article I, §§7-9) and the Article II Executive power to make all these things happen, but the bottom line regarding this past summer’s debate is that the President cannot make the law.
In any (private, common law) situation where several individuals share fiduciary power, a suit to compel trustee action may be maintained by one trustee or by the beneficiaries. It is entirely consistent with the President’s executive power to “take Care that the Laws be faithfully executed” that the President should have the power to bring suit to compel Congressional action.
But in light of the 14th Amendment, §4:1, when viewed, construed, and applied as a direct amendment to and modification of the only parallel clause in the Constitution, namely Article I, §6:3, also makes clear that Congressional Immunity has been at least partially repealed or limited in regard to the debt(5). Bondholders whose investments are threatened by the downgrade of the U.S. Debt and the intended (and by their payments vested) beneficiaries of the Social Security Trust fund and Medicare Part A all have
standing to sue for the real and/or threatened injury to their investments. The defendants to be sued include all executive branch trustees6 including at least the current direct trustees Timothy F. Geithner, Kathleen Sibelius, Hilda Solis, Michael J. Astrue, Charles P. Blahous, III, and Robert D. Reischauer:
“Status of the Social Security and Medicare Programs: A Summary of the 2011 Annual Reports,” http://www.ssa.gov/oact/trsum/index.html and possibly including President Barack H. Obama himself, but definitely, in light of the parallel language interpretation proposed here, all members of Congress whose immunity should be deemed expressly waived.
Professor Tribe reviewed but questioned the litigation option, but because he had not compared the “shall not be questioned” language of Article I, §6:3 with the Fourteenth Amendment’s §4:1, he did not address the question of Congressional immunity, taking it as a given that only abstract declaratory judgments brought by an obscure if not non-existent individual who could show he was specially injured either by the downgrading of the U.S. public debt or by some other aspect of the debt crisis. It is because of the joint barriers of the doctrines of “particularized injury standing” coupled with immunity that a private right of action has never been suggested before.
RELIEF TO BE SOUGHT IN RE: SOCIAL SECURITY & MEDICARE
The specific “justiciable” relief to which beneficiaries of Social Security would be
(1) a declaration that the relationship between the Social Security & Medicare Trusts and all contributing “taxpayers” is that of trustees and beneficiaries, even if no express contract or declaration of trust has ever been constructed on a party-by-party basis, Association (FNMA) and its pair Government Sponsored Enterprise (GSE) Freddie Mac, both effectively “nationalized” by agreement on September 6, 2008. (The agreement the Treasury made with both GSEs specified that in exchange for future support and capital investments of up to US$ 100 billion in each GSE, at the inception of the conservatorship, each GSE would issue to the Treasury US$ 1 billion of senior preferred stock, with a 10% coupon, without cost to the Treasury. Also each GSE contracted to issue common stock warrants representing an ownership stake of 79.9%, at an exercise price of one-thousandth of a U.S. cent ($ 0.00001) per share, and with a warrant duration of twenty years. This kind of economic structure for the support of the housing market differs in no material way from the governmental support for social security which is imperiled by Congressional inability to ensure the validity of the public debt of the United States and the consequent downgrading of U.S. Debt generally which was announced after the weak compromise between Congressional Republicans and Democrats on August 2-3, 2011, last week).
(2) a judicial construction and reformation of what the express contract between each beneficiary and trustees ought to be in light of political promises and public propaganda at the time of adoption and modification, and a mandamus to Congress ordering them to follow this reconstructed and reformed express Contract as part of the valid public debt of the United States, to ensure the full faith and credit of the United States Government.
(3) a judicial declaration that 42 U.S.C. §13047 is an unconstitutional violation of §4:1 of the Fourteenth Amendment, as well as a violation of the due process clause of the Fifth Amendment, and the Article I, §9 prohibition on ex-post-facto laws. Plaintiffs should ask that the court expressly declare that Congress cannot in fact cancel Social Security payments once vested to any particular beneficiary by payment of Social Security taxes into the Social Security Trust Fund, enforcing Congressional and political inducements to passage of the Social Security laws according to precisely the same standards as would be applicable to a common law “constructive trust” or “fraudulent inducement to contract” case against private parties at common law.
(4) a related judicial declaration that Flemming v. Nestor, 363 U.S. 603 (1960) was wrongly decided and should be overturned for the following reasons: (First) the holding of Flemming v. Nestor is utterly inconsistent with the Public Debts Clause of §4:1 of the Fourteenth Amendment, Fifth Amendment due process, the ex post-facto clause of Article I, and (Second) also with the holdings of two other U.S. Supreme Court Cases, namely Perry v. United States, 294 U.S. 330 (1938) which has been widely discussed in the past summer’s debate concerning the debt crisis and the Public Debt Clause of the Fourteenth Amendment, but also Schware v. Board of Bar Examiners, 353 U.S. 232 (1957), which held that mere former membership in the Communist Party during the 7 TITLE 42 > CHAPTER 7 > SUBCHAPTER XI > Part A > § 1304§ 1304. Reservation of right to amend or repeal The right to alter, amend, or repeal any provision of this chapter is hereby reserved to the Congress. http://www.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00001304----000-.html
1930s was no grounds for denial of the right to practice law, absent any indication of subversive or treasonous activities of any kind. Flemming v. Nestor is, in short, incomprehensible and irreconcilable even with a case decided a mere three years before.
(5) The plaintiffs must seek a final declaration that Congress must manage the Social Security and Medicare Trust Funds as a “genuine” trust, which is to say that if Congressever uses Social Security Trust Funds to pay other government debts, Congress is in effect borrowing money and must repay the funds borrowed at a rate of interest not lower thanthe lowest then current interest being paid on U.S. Treasury Bonds.
(6) Accordingly, social security payments are “trust property” and ought to be maintained and invested in such a way as to produce future income sufficient to honor government commitments in the manner of ordinary annuity and private pension fund plans, and the Plaintiffs should seek a reaffirmation of the principal that when the government engages in activities formerly the exclusive realm of private commerce, such as retirement or health insurance, the government operates in commerce and enjoys no special immunity from suit for breach of contract or breach of fiduciary duty, all language in Flemming
v. Nestor or Helvering v. Davis, 301 U.S. 619 (1937) notwithstanding.
(7) Furthermore, all subsequent qualifications and limitations on the nature of the property interest of payors into the Social Security Trust Fund and Medicare Part A found or enunciated in Goldberg v. Kelly, 397 U.S. 254 (1970), Mathews v. Eldridge, 424 U.S. 319 (1976), and related cases suggesting that the “entitlement” to Social Security or Medicare Part A benefits amounts to something less than a full “property” interest protected by the Fifth Amendment were likewise wrongly decided, especially when compared with (again) contrary contemporaneously decided cases such as Fuentes v. Shevin, 407 U.S. 67 (1972) which held that full due process hearings were necessary prior to the state-assisted takings of property only partially or incompletely “owned” by the claimants.
SPECIFIC POTENTIAL LITIGANTS
Laurence H. Tribe, as noted above, rejected the possibility of a judicial resolution of the debt crisis because he doubted that anyone would have standing. Michael Abramowicz, by contrast, in his Public Debt Clause Law and Legal Theory Paper #575 cited above, devoted Part IV, pages 45-51 of his article to the question of justiciability. Even without the express waiver of Constitutional legislative and sovereign immunity proposed here, which I argue is a necessary inference and conclusion from the repetition of the unique phrase “shall not be questioned” in Article I, §6:3 and Amendment XIV, §4:1, Abramowicz believes that private party beneficiaries of expressly threatened or implicitly jeopardized “entitlements” would have standing to sue. I think Abramowicz also appears to agree, at least implicitly, that a judicial reconstruction of the specific obligations of the Social Security and Medicare Part A trusts to specific beneficiaries is not only possible but desirable.
So a low income private citizen, for example, a disabled mother over the age of 60 who has custody and conservatorship over her even more severely and permanently disabled adult son, neither of whom have any income other than Social Security and no insurance coverage other than Medicare, would have both standing and an urgent reason, after last weeks downgrading of the U.S. Debt rating, to go into court to complain about the potential threat to her vested property interests caused by Congressional and/or Executive Branch breaches of fiduciary duty. That low income mother would be specifically entitled to seek, under 28 U.S.C. §§2201-2202, and for “takings” civil rights violations under Bivens, a trust accounting of her rights and entitlements, based on her own and her husband’s contributions to social security, and a resultant judicial declaration of her specific rights, and a judicial order of mandamus both to Congress and to the Trustees of Social Security and Medicare to secure her benefits at a certain level
and certain precise terms which would not be subject to cancellation or diminution.
At the other end of the spectrum, one or more fiscally conscious member of the House or Senate might well be concerned that his (or their) colleagues had just recently (last week), exposed the validity of the public debt of the United States both to question and downright disbelief, both with regard to jeopardy and the possibility of dishonor/default on bonds and non-bond public obligations. See again, Abramowicz’ excellent article, Part II, at 18-32, esp. 25-29.
These members would have special standing as co-trustees to bring suit against the other members of Congress and the Federal Executive Officers listed above for a declaratory judgment concerning the prioritization of obligations and which obligations could and should take precedence over others. As the University of Chicago Law School’s Professor Randal Picker has pointed out, a modern bankruptcy analysis of the current U.S. debt situation would provide some guidelines about which debts should be
allowed to be discharged or from which no discharge would be permitted:
Many would submit that that United States has been in a perpetual state of bankruptcy since 1933 at the latest, and this is not an entirely frivolous contention. Where co-trustees of a private trust cannot agree on the payment of debts, they might well seek judicial guidance as to prioritization, even if the trust were not actually bankrupt.
The most significant point that both the disabled mother with her disabled son and the conscientious members of the House and Senate would want to submit for a judicial determination is that Social Security and Medicare were both “framed” and “sold to the public” as Trusts. And yet Congress sought through 42 U.S.C. §1304 to make Social Security “flexible” in such a way that it was in essence authorizing perpetual and ongoing breaches of fiduciary duty and fraud in the management of the Social Security and Medicare Trusts. And to its great discredit, the Supreme Court of the United States likewise allowed Social Security to be managed as anything but a normal trust, without ever explaining its intent to do so, through disingenuous holdings such as Helvering v. Davis in 1937 (which was utterly inconsistent with Perry v. United States, decided just two years before in 1935) and Flemming v. Nestor in 1960 (which was inconsistent not only with Perry but also Schware v. Board of Bar Examiners, decided just three years before in 1957).
The Fifth Amendment property-takings issues must be reopened.
Both private and public plaintiffs would sue for a declaration of Constructive Trust by representation and induced reliance on public statements made in support of the enactment of Social Security, and for the punishment of Congressional and Executive Branch frauds committed on the American people.
Both private and public plaintiffs could then sue. This would be a matter of both Constitutional and Common Law, for a judicially supervised reconstruction of Social Security, Medicare and genuine trusts with identifiable corpus property and income resulting from the same.
Above all, both private and public plaintiffs would sue to enforce the following principal.
When the United States government enters into acts of commerce, such as social and health insurance were always in the past and still are to a great degree, the United States government is absolutely subject to the same Common Law of Contracts, Torts, Fiduciary Obligations, and Fraud which bind every private trust in every state and indeed, wherever the English language and system of laws has reached.
Indeed, the phrase “shall not be questioned” aligns itself more easily with concepts such as King James I’s
George Washington University Law Public Law & Legal Theory Paper No. 575, Legal Studies Research Paper No. 575, http://ssrn.com/abstract=1874746 at 4, n.11.
Arthur M. Schlesinger, Jr., coined the term “Imperial Presidency” in 1973 post-FDR/New Deal, post- Kennedy/Camelot, contemporaneously with Nixon and Watergate, but long before the current Administration’s 34 Ship Flotilla to India in 2010.
The phrase “Presidential power at its lowest ebb” comes from the former Nuremberg prosecutor’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) which struck down President Truman’s seizure of American steel mills during the Korean War: When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [p. 638] the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
It is extremely important to note that Article I, §6:3 is the only constitutionally express or even implicit grant of “Sovereign Immunity” from suit to any branch of the Federal Government of the United States of America---despite “ad hoc” claims to executive immunity and privilege and judicial constructions of executive, judicial, and general governmental immunity which lack any textual basis in the constitution at all, and would in fact seem to be contradicted by the guarantee of the “right to petition for redress of grievances” in the First Amendment. Claims to governmental immunity for violation of the Constitution are a disease eating away at the marrow of our ideally free, democratic society, and the lawsuit, action in equity, and/or Constitutional declaratory judgment proposed here would be an important step towards limiting this pernicious doctrine (of Federal governmental immunity even for violations of the Constitution).
The Executive Trustees for Social Security and Medicare can and should be sued for breach of their fiduciary duty to BRING this suit if they do not in fact do so, as suggested they can and should, above. The analogy to the private trustee’s duty to sue delinquent co-trustee’s in breach of fiduciary duty (and the equivalent Corporate Officer’s and Director’s duty asserted in a derivative suit) applies here a fortiori. Indeed, the Social Security and Medicare Trusts are both essentially analogous to federally owned corporations, who have no sovereign immunity to the extent that they operate in commerce. See, e.g. 28 U.S.C. §1349: U.S. District Courts have jurisdiction over any U.S. government chartered corporation 51% or more of whose capital stock is owned by the United States, e.g. the Federal National Mortgage.