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If push comes to shove, should Obama simply ignore the debt ceiling?

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More than a few economists and political scientists are warning that any hardships that arise from the current government shutdown would pale in comparison to the pending disaster of not raising the debt ceiling.

Henry Aaron (no, not that Henry Aaron) SAYS President Obama should ignore the debt ceiling if he has to:

Failure to raise the debt will force the president to break a law — the only question is which one.

The Constitution requires the president to spend what Congress has instructed him to spend, to raise only those taxes Congress has authorized him to impose and to borrow no more than Congress authorizes.

If President Obama spends what the law orders him to spend and collects the taxes Congress has authorized him to collect, then he must borrow more than Congress has authorized him to borrow. If the debt ceiling is not raised, he will have to violate one of these constitutional imperatives. Which should he choose?

In 2011, when Congress last flirted with not raising the debt ceiling, lawyers disagreed. Some argued that the president must honor the debt ceiling, thereby violating budget laws. Others held that he must honor budget legislation. No one argued that he should unilaterally raise taxes. Professors Neil H. Buchanan and Michael C. Dorf, who parsed the arguments in the Columbia Law Review in 2012, concluded that all options were bad, but that disregarding the debt ceiling was least bad from a legal standpoint.

I agree. Lawyers tend to play down policy considerations as a basis for interpreting law. In this case, the consequences are so overwhelmingly on one side that they cannot be ignored by the president and should not be ignored by the courts. If the debt ceiling is not increased, the president should disregard it, and honor spending and tax legislation.

A decision to cut spending enough to avoid borrowing would instantaneously slash outlays by approximately $600 billion a year. Cutting payments to veterans, Social Security benefits and interest on the national debt by half would just about do the job. But such cuts would not only illegally betray promises to veterans, the elderly and disabled and bondholders; they would destroy the credit standing of the United States and boost borrowing costs on the nation’s $12 trillion publicly held debt.

There is no clear legal basis for deciding what programs to cut. Defense contractors, or Medicare payments to doctors? Education grants, or the F.B.I.? Endless litigation would follow. No matter how the cuts might be distributed, they would, if sustained for more than a very brief period, kill the economic recovery and cause unemployment to return quickly to double digits.

Nor is it reasonable to expect the president to collect more in taxes than is authorized by law. For him to do so would infringe on Congress’s most fundamental powers and the principles on which the nation was founded.

The only defensible option for the president if the debt ceiling is not raised is to disregard the debt ceiling. The action would be unconstitutional because it would be illegal. Financial markets might react negatively, but not nearly so negatively as if the United States failed to redeem bonds or to pay interest on its debt.

The president would be attacked. He might even be impeached by the House. But maybe not: the House would then be saying that the president should have illegally failed to pay F.B.I. agents, or school districts, or Medicare doctors. In any case, he would not be convicted by the Senate. And he would have saved the nation from much agony.

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4 Comments

  1. Neftali

    Interest concept, but it would never happen. There is already plenty of precedent about the President honoring the debt ceiling first and foremost from the last 17 government shutdowns since 1976. There is no way our current President would risk going against that precedent and certainly guaranteeing impeachment.

    This whole article reminds of that crock theory last year about the trillion dollar platinum coin. It might theoretically pass the Constitutional mustard, but there is no chance of it actually becoming reality.

  2. Neftali: Most of those “17 government shutdowns since 1976″ to which you refer hardly deserve the label.

    This morning, I ran across these three characterizations of those events:

    1. Most of these lapses were short or happened over a weekend. They were barely noticed at the time and are not memorable now.

    2. The lapses were not typically government-wide. Instead, they only happened to one or two agencies or departments.

    3. In many ways most important, until Carter Attorney General Benjamin Civiletti issued memorandums in 1980 and 1981 that set up new rules and standards, agencies and departments that suffered an appropriations lapse were allowed to continue to operate as if there was no lapse at all.

  3. By the way, Neftali, here’s a friendly tip about your reference to “pass the Constitutional mustard.”

    What you meant to say, I’m sure, is something about a strategy that “passes constitutional muster.”

  4. Neftali

    LOL! You are correct. Must have been thinking about lunch….

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