This is How Legislative Blackmail Becomes a Real Crisis
It’s all fun and games until someone gets hurt, playing with fire and all. And this is precisely what the House GOP, the Tea Party faction in particular, are doing. Right now they burning small stuff (i.e., refusing the passing a continuing resolution to fully fund the government) but the next step, refusing to raise the debt ceiling, will create a even larger conflagration.
Consider what Garrett Epps points out at the Atlantic: If Congress Won’t Raise the Debt Ceiling, Obama Will Be Forced to Break the Law.
The world has heard enough from me on this subject, but three nuanced analyses are worth looking at. The first, by Henry J. Aaron of the Brookings Institution, notes that the debt-ceiling crisis threatens not just the president’s constitutional duty to make payments on the public debt but also the accompanying requirement that he spend money lawfully appropriated by Congress, either as part of a yearly budget or as part of statutes authorizing “entitlement” payments like Medicare or veterans’ benefits.
Failing to do any of these things would be a default on the president’s duty to “take care that the laws be faithfully executed.” The president may not be able to obey all three sources of law; if so, Aaron argues, he should make the payments and ignore the debt ceiling. “The debt ceiling is the fiscal equivalent of the human appendix — a law with no discoverable purpose,” he writes. “If Congress leaves the debt ceiling at a level inconsistent with duly enacted spending and tax laws, the president has no choice but to ignore it.”
Aaron’s argument echoes the elegant analysis last fall by law professors Neil Buchanan of George Washington University and Michael Dorf of Cornell. These two prominent scholars concluded that paying appropriated monies and interest on the debt represents the “least unconstitutional” option open to a president when Congress refuses to approve a debt-ceiling increase.
In the same vein is a 2011 essay by Peter Shane of the Ohio State University — one of the most careful students of presidential authority writing today. “The legal path is not clearly marked either way,” he writes. But Shane notes that both paying the debt and the appropriated monies, and impounding the monies and defaulting on the debt, involve a president violating some legal command.
All the commands can’t be right.
If Congress refuses to act, the President will be put in a wholly untenable position where no matter what he does (or even if he does not act all) will be a violation of the constitution as well as existing laws. If he acts and allows the Treasury to borrow, he is violating the law that establishes the debt ceiling. However, if he abides by that laws, he violates the spending already authorized by legislation. It is, for example, the law that entitlements be paid. So either way he goes, he violates the laws passed by Congress. Further, there is the very real fact that the president is charged, constitutionally, the execute the law, and there is the pesky Fourteenth Amendment, which states in Section Four:
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.
And, of course, that pesky Article II command, noted in the quote above, that he faithfully execute the laws.
When a portion of the government refuses to do its job, especially when it refuses to perform a fundamental function, this can force other parts of the government to have to overstep its appropriate roles. This can be dangerous because once different institutions have to make up the rules as they go, the basic fabric of the system starts to unravel.
The executive branch should not be put in the position of acting like the judicial branch, and making definitive interpretations of disputes about the meaning of the constitution and the laws, nor do we want the executive making de facto laws in lieu of legislative action.
However, if the Congress cannot find a way to allow the debt ceiling to be raised, that is what is going to happen. It creates an extra-constitutional moment in which we are not governed by our institutions, but by the intuition of the president and his advisers. This is not a position any of us should want to come to pass, regardless of our political persuasions. We should especially oppose creating such a situation artificially. When Lincoln decided to ignore a writ of habeas corpus, at least it was in the midst of major and unprecedented crisis (and this is also cited as an example of Lincoln giving in to an authoritarian moment–let that sink in). A debt ceiling crisis is averted with such ease that there is truly no excuse for even flirting with it, let alone consciously allowing it to take place.
I don’t want to sound overly alarmist, but this is all quite serious and anyone who values a stable constitutional order ought to demand the the House GOP not play this game. If they want to repeal the PPACA, there is a constitutional remedy: win the White House and enough seats in both chambers of Congress. That is not a flippant answer, it is the constitutional and democratic answer. I recognize the difficulty of the task, but that is the way the system works and breaking the system over one law is utter foolishness.