Teachers as mediators: an exploration of situated English teaching

Within the context of lower secondary English teaching in South West England, this study identifies in broad terms the competing goals between which English teachers mediate and the explicit and hidden tensions that result. To understand the interactions of competing goals, teachers’ goal-oriented behaviours are referenced to a set of idealised ‘role types’ based on the dimensions of goals, norms, discourses and practices. It is asserted that competing goals, significant to particular educational circumstances, emanate from various sometimes contradictory local, national and perhaps broader social and cultural influences on practice. Yet the teachers observed moved smoothly between goal-oriented behaviours in a continuous and comfortable style, easily and without reflecting any tensions between them. Thus, this article elaborates an account of situated English teaching

How to Choose the Least Unconstitutional Option: Lessons for the President (and Others) from the 2011 Debt Ceiling Standoff

The current successor to a federal statute first enacted in 1917, and widely known as the “debt ceiling,” limits the face value of money that the United States may borrow. Congress has repeatedly raised the debt ceiling to authorize borrowing to fill the gap between revenue and spending, but in the summer of 2011, a political standoff nearly left the government unable to borrow funds to meet obligations that Congress had affirmed earlier that very year. Some commentators urged President Obama to ignore the debt ceiling and issue new bonds, in order to comply with Section 4 of the Fourteenth Amendment, which forbids “question[ing]” “[t]he validity of the public debt.” Others responded that such borrowing would violate the separation of powers and therefore that the President instead ought to refuse to spend funds that Congress had appropriated. In the end, eleventh-hour legislation averted the crisis, at least for the moment, but absent a substantial political realignment, there is reason to believe that a similar standoff could occur again. This Article analyzes the choice the President nearly faced in summer 2011, and which he or a successor may face again, as a “trilemma” in which he had three unconstitutional options: Ignore the debt ceiling and unilaterally issue new bonds, thus usurping congressional power to borrow money; unilaterally raise taxes, thus usurping congressional power to tax; or unilaterally cut spending, thus usurping congressional power to make spending decisions and arguably violating Section 4 of the Fourteenth Amendment as well. We argue that faced with this choice among unconstitutional options, the President should choose the “least unconstitutional” course - here, ignoring the debt ceiling. We argue further, though more tentatively, that if the bond markets would render such debt inadequate to close the gap, the President should unilaterally raise taxes rather than unilaterally cut spending. We then use the debt ceiling impasse to develop general criteria for political actors to choose among unconstitutional options. Although we offer no algorithm, we emphasize three guiding principles: 1) Minimize the unconstitutional assumption of power; 2) minimize sub-constitutional harm; and 3) preserve, to the extent possible, the ability of other actors to undo or remedy constitutional violation

How to Choose the Least Unconstitutional Option: Lessons for the President (and Others) from the 2011 Debt Ceiling Standoff

The current successor to a federal statute first enacted in 1917, and widely known as the “debt ceiling,” limits the face value of money that the United States may borrow. Congress has repeatedly raised the debt ceiling to authorize borrowing to fill the gap between revenue and spending, but in the summer of 2011, a political standoff nearly left the government unable to borrow funds to meet obligations that Congress had affirmed earlier that very year. Some commentators urged President Obama to ignore the debt ceiling and issue new bonds, in order to comply with Section 4 of the Fourteenth Amendment, which forbids “question[ing]” “[t]he validity of the public debt.” Others responded that such borrowing would violate the separation of powers and therefore that the President instead ought to refuse to spend funds that Congress had appropriated. In the end, eleventh-hour legislation averted the crisis, at least for the moment, but absent a substantial political realignment, there is reason to believe that a similar standoff could occur again. This Article analyzes the choice the President nearly faced in summer 2011, and which he or a successor may face again, as a “trilemma” in which he had three unconstitutional options: Ignore the debt ceiling and unilaterally issue new bonds, thus usurping congressional power to borrow money; unilaterally raise taxes, thus usurping congressional power to tax; or unilaterally cut spending, thus usurping congressional power to make spending decisions and arguably violating Section 4 of the Fourteenth Amendment as well. We argue that faced with this choice among unconstitutional options, the President should choose the “least unconstitutional” course - here, ignoring the debt ceiling. We argue further, though more tentatively, that if the bond markets would render such debt inadequate to close the gap, the President should unilaterally raise taxes rather than unilaterally cut spending. We then use the debt ceiling impasse to develop general criteria for political actors to choose among unconstitutional options. Although we offer no algorithm, we emphasize three guiding principles: 1) Minimize the unconstitutional assumption of power; 2) minimize sub-constitutional harm; and 3) preserve, to the extent possible, the ability of other actors to undo or remedy constitutional violation

Nullifying the Debt Ceiling Threat Once and for All: Why the President Should Embrace the Least Unconstitutional Option

In August 2011, Congress and the President narrowly averted economic and political catastrophe, agreeing at the last possible moment to authorize a series of increases in the national debt ceiling. This respite, unfortunately, was merely temporary. The amounts of the increases in the debt ceiling that Congress authorized in 2011 were only sufficient to accommodate the additional borrowing that would be necessary through the end of 2012. In an economy that continued to show chronic weakness -- weakness that continues to this day -- the federal government would predictably continue to collect lower-than-normal tax revenues and to make higher-than-normal expenditures, which meant that the debt would necessarily grow over time. Because there is no reason to believe that the annual budget will be balanced after 2012 -- indeed, because that would be an affirmatively bad idea, even if the economy were to return to full employment -- everyone knew that the debt ceiling would have to be raised by the beginning of 2013, to accommodate economic reality as the country continues to try to return to prosperity. As soon as the agreement temporarily averting the crisis was reached in 2011, however, the two top Republican leaders in Congress announced that they planned to demand additional spending cuts every time in the future that the debt ceiling needed to be increased. Their strategy appears to be based on the assumption that reaching the debt ceiling would, as a matter of course, require the president to cut spending in order to keep total borrowing under the statutory limit. If that were a correct reading of the Constitution, the president would in each case be forced to choose between inflicting severe and immediate austerity on the country at the moment the ceiling was reached -- making spending cuts adequate to reduce total spending, so that it would match the tax revenues flowing into the Treasury -- and accepting less severe austerity in the immediate term, by agreeing to cut spending by larger amounts in the future as the “price” of allowing borrowing to rise in the immediate term, with concomitantly smaller spending cuts up front. We addressed the debt ceiling standoff in an article published in the Columbia Law Review earlier this year: How to Choose the Least Unconstitutional Option: Lessons for the President (and Others) from the Debt Ceiling Standoff (hereinafter “How to Choose”). We argued there that it is incorrect to assume that the president can, or should, reduce authorized spending if the federal government reaches its statutory debt ceiling. Instead, we argued that the president should faithfully carry out the exact levels of spending and taxes that are required by the duly enacted budget of the United States -- even if doing so requires him to exceed the debt ceiling -- by issuing Treasury bonds in amounts sufficient to finance the difference between the levels of spending and taxation that Congress has authorized. As this follow-up essay is being published, in late December 2012, the President and congressional Republicans are in the midst of budget negotiations that may hinge on whether our argument was correct -- that the president has a duty under the Constitution to set aside the debt ceiling, if the moment of truth comes. Unfortunately, none of the participants in the negotiations has offered any public indication that they even understand the nature of the problem that the president would face, much less how to resolve that problem, should Congress refuse to raise the debt ceiling. We argue here that the President should make it clear, as soon as possible, that the debt ceiling is not, and cannot legally be used as, a cudgel with which Congress can force him to renegotiate the federal budget. If the President does not do so now, the problem will continue to arise in the future, every time the debt level grows (as it should, in a growing economy which offers continuing opportunities for public investment) above the arbitrary dollar limit that Congress might set. Therefore, the President\u27s best course is to make clear that the debt ceiling must always give way to the wishes of Congress, as expressed through the budget of the United States

Bargaining in the Shadow of the Debt Ceiling: When Negotiating over Spending and Tax Laws, Congress and the President Should Consider the Debt Ceiling a Dead Letter

If the debt ceiling is inconsistent with existing spending and taxing laws, what must the President do? In earlier work, we argued that when Congress creates a trilemma -making it impossible for the President to spend as much as Congress has ordered, to tax only as much as Congress has ordered, and to borrow no more than Congress has permitted-- the Constitution requires the President to choose the least unconstitutional path. In particular, he must honor Congress\u27s decisions and priorities regarding spending and taxing, and he must issue enough debt to do so. Here, we extend the analysis in two ways. First, we rebut several recently-advanced arguments that purport to dissolve the trilemma. We explain that upon close inspection some of those arguments amount to non sequiturs, while one potentially promising solution would merely substitute a nondelegation violation for a separation-of-powers violation. Second, we ask whether our original analysis changes if both Congress and the President, when they pass appropriations measures, knowingly create a trilemma. We conclude that the answer does not change-that is, that spending and taxing laws must still take precedence over the debt ceiling. Accordingly, the debt ceiling is effectively a dead letter, and both Congress and the President should treat it as such

How to Choose the Least Unconstitutional Option: Lessons for the President (and Others) from the Debt Ceiling Standoff

The federal statute known as the “debt ceiling” limits total borrowing by the United States. Congress has repeatedly raised the ceiling to authorize necessary borrowing, but a political standoff in 2011 nearly made it impossible to borrow funds to meet obligations that Congress had affirmed earlier that very year. Some commentators urged President Obama to ignore the debt ceiling, while others responded that such borrowing would violate the separation of powers and therefore that the president should refuse to spend appropriated funds. This Article analyzes the choice the president nearly faced in summer 2011, and which he or a successor may yet face, as a “trilemma” offering three unconstitutional options: ignore the debt ceiling and unilaterally issue new bonds, thus usurping Congress’s borrowing power; unilaterally raise taxes, thus usurping Congress’s taxing power; or unilaterally cut spending, thus usurping Congress’s spending power. We argue that the president should choose the “least unconstitutional” course — here, ignoring the debt ceiling. We argue further, though more tentatively, that if the bond markets would render such debt inadequate to close the gap, the president should unilaterally increase taxes rather than cut spending. We then use the debt ceiling impasse to develop general criteria for political actors to choose among unconstitutional options. We emphasize three principles derived from a famous speech by President Lincoln: 1) minimize the unconstitutional assumption of power; 2) minimize sub-constitutional harm; and 3) preserve, to the extent possible, the ability of other actors to undo or remedy constitutional violations

Don\u27t End or Audit the Fed: Central Bank Independence in an Age of Austerity

The Federal Reserve (“Fed”) is the central bank of the United States. Because of its power and importance in guiding the economy, the Fed’s independence from direct political influence has made it a target of ideologically motivated attacks throughout its history, with an especially aggressive round of attacks coming in the wake of the 2008 financial crisis and ongoing today. We defend Fed independence. We point to the Fed’s exemplary performance during and after the 2008 crisis, and we offer the example of a potential future crisis in which Congress fails to increase the debt ceiling to show how the Fed’s independence makes it the only entity that can minimize the damage during crises (both market-driven and policy-induced). We further argue that the Fed’s independence is justified to prevent self-dealing by politicians, even when no crisis is imminent. Although the classic justification for Fed independence focuses on the risk that political actors will keep interest rates lower than appropriate for the long-term health of the economy, we show that Fed independence addresses the risk of self-dealing and other pathologies even when, as now, political actors favor tighter monetary policy than appropriate for the long-term health of the economy

Levels of Generality in the Definition of Rights

This article focuses on one important aspect of the quest for constitutional meaning: how to determine whether a particular liberty-whether or not expressly enumerated in the Bill of Rights-is a fundamental right. Whether under the somewhat tarnished banner of substantive due process or under a different rubric, the designation of a right as fundamental requires that the state offer a compelling justification for limitations of that right. In addition, under the Equal Protection Clause of the Fourteenth Amendment, state-sanctioned inequalities that bear upon the exercise of a fundamental right will be upheld only if they serve a compelling governmental interest. Because the strict scrutiny which applies to laws that affect fundamental rights in either of these two ways is usually fatal, whether to designate a right as fundamental poses a central substantive question in modern constitutional law

Borrowing By Any Other Name: Why Presidential Spending Cuts Would Still Exceed the Debt Ceiling

On three occasions since mid-2011, the United States has come perilously close to exhausting its borrowing authority under a statutory limit commonly called the debt ceiling. In prior work, the current authors argued that, in the event that the debt ceiling is reached, the President will face a trilemma in which any realistic action he takes — defaulting on government obligations, raising taxes, or issuing debt in excess of the statutory ceiling — would unconstitutionally usurp legislative power. We argued that in such circumstances, violating the debt ceiling would be the least unconstitutional option. Nonetheless, most pundits and politicians, including the President, appear to assume that if the debt ceiling is reached, default would be necessary. Here, we observe a previously unnoticed deficiency in this assumption: Default would not only usurp congressional power to set spending levels; it would not even satisfy the debt ceiling, because failure to pay money due government obligees is a kind of borrowing, both for statutory and constitutional purposes. A loan taken from the lender involuntarily is hardly better than consensual borrowing. The government could avoid this result only by expressly repudiating its obligations, but to do that would violate even the very narrow construction of Section 4 of the Fourteenth Amendment advanced by those who treat default as the necessary consequence of congressional failure to raise the debt ceiling