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Dissent

In this column, we have praised a couple of recent Indiana Court of Appeals decisions for their use of textualism. Yesterday, the Court released an opinion that inspires a dissent from Judex.

In Wellman v. State, the defendant was arrested for Operating While Intoxicated Endangering, as a class A misdemeanor, Operating a Vehicle with ACE of .15 or greater, as a class A misdemeanor, and Operating While Intoxicated as a class C misdemeanor. Over the course of thirteen months, the defendant’s case was continued because the parties were waiting on results from lab analysis of the defendant’s blood. All the continuances were initiated by or acquiesced to by the defendant. After thirteen months, the defendant moved to dismiss the case arguing that his speedy trial rights were violated pursuant to Criminal Rule 4(C). The text of Indiana Criminal Rule 4(C) states that a defendant shall be discharged if not brought to trial within one year, “except where a continuance was had on his motion…”     

The Trial Court Judge denied the defendant’s motion to dismiss noting that the delay was attributable to the defendant because he had moved for or agreed to the continuances, presumably, according to the Judge, as part of his trial strategy. The Indiana Court of Appeals reversed, holding that the delay was not properly attributed to the defendant under “the discovery exception” to the speedy trial rules.

Our dissent is prompted by a couple of points. First, there does not appear to be a record of the defense arguing that they were prepared for trial except for the lab results. Rather, the posture of the defense was that they wanted to see the lab results before they decided whether to plead or go to trial, and were willing to wait on the results, as evidenced by the defendant moving to continue the case each time. The Trial Court Judge recognized this distinction in his ruling when he charged the delay to the defendant’s trial strategy.  

Second, rather than a speedy trial violation, the proper procedural remedy for the defendant was a motion to exclude the toxicology evidence because it was not timely produced. That would have resulted in the State having to dismiss the count based on the blood test. In addition to being charged with the Operating a Vehicle with ACE of .15 or Above, the defendant was also charged with OWI Endangering and OWI counts. Neither of these counts required toxicological reports. The State could have proceeded to trial on those two counts without the lab tests. The rationale for “the discovery exception” does not apply to the OWI counts. Yet, the Court of Appeals opinion deprives the State of that option.

There will almost certainly be an opportunity to address these issues, as the State will likely seek transfer to the Indiana Supreme Court. We’ll keep an eye on it for you.

Separation of powers

A separation of powers issue has recently bubbled up regarding authority to issue debt in the name of the United States government. The issue involves what is commonly referred to as “the debt ceiling.”

There is a federal statute that creates a maximum amount of debt the U.S. can amass without Congress authorizing further debt, i.e., the debt ceiling. The U.S. is expected to reach the debt ceiling on June 1, 2023. There is no disagreement that the debt ceiling needs to be increased prior to that date. However, Democrats are pushing for a “clean debt ceiling increase,” meaning a bill to just raise the cap. Republicans are agreeable to raising the debt ceiling, but demand spending reforms before doing so. Two weeks ago, the Republican controlled U.S. House passed a bill increasing the debt ceiling while cutting federal spending. So far, the Democrat controlled U.S. Senate and President Biden have refused to negotiate on spending cuts. Thus, the process is stalled threatening a U.S. default on debt obligations.

On Tuesday of this week, President Biden floated the idea, which has been discussed in academic circles for years, that the Fourteenth Amendment to the U.S. Constitution authorizes the President, unilaterally, to issue U.S. debt.

As good textualists, let’s first go to the text of the Constitution. The Fourteenth Amendment states, in relevant part, “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 first problem with President Biden’s argument, it seems to me, is the text of the Constitutional Amendment, which contains the clause, “authorized by law.” The “law” in this case is the Constitution itself as well as federal spending statutes passed by Congress. Article I, Section 8 of the U.S. Constitution, referred to as the spending clause, states that, “Congress shall have the power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” This section unequivocally vests spending power in the Congress. Further, the “debt ceiling” that needs to be increased is a federal statute passed by Congress as authorized by the Constitution.

On purely textualist and originalists grounds, the President’s argument fails. Further though, historically, the Fourteenth Amendment has never been read in the way that the President is proposing. President Biden’s own Treasury Secretary, Janet Yellen, said this week that the notion is “legally questionable.” Presidents Obama and Clinton were both confronted with debt ceiling fights, and both acknowledged that the Fourteenth Amendment was not a tool available to them. President Obama stated that he was, “not persuaded that that is a winning argument.”

Finally, President Biden has a more practical concern. Because the issue raises such important separation of powers questions, a definitive answer could only come from the U.S. Supreme Court. The issue could not possibly be litigated prior to the June 1, 2023 default date.

So, the question of whether the Fourteenth Amendment authorized the President to raise the debt ceiling is likely a thought experiment that will never get resolved. Whether the debt ceiling issue itself gets resolved prior to June is a different question. On that, we’ll have to wait and see.