This is How Legislative Blackmail Becomes a Real Crisis

Not raising the debt ceiling will create a true constitutional/legal crisis.

constitution-preamble-quill-penIt’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 AtlanticIf 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.

FILED UNDER: US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. grumpy realist says:

    Unfortunately, we are dealing with a bunch of idiots who have the mentality of toddlers: “NO! NO! I DON’T WANNA! YOU CAN’T MAKE ME! WAAAAH!”

    I bet that there are probably Republican strategists who are thinking that either way, it’s impossible for them to lose. Either Obama gives in to them on the debt limit, or he doesn’t and takes actions to get around it, in which case they can impeach him.

    I really hope that the business community rises up and squishes these idiots like cockroaches.

  2. Eric Florack says:

    Obama?
    Hmmm.

    Is this the same guy who in 2006 told us that raising the debt ceiling was the result of a lack of leadership?

    funny how that works.

  3. @Eric Florack: How it works is that he was wrong in 2006 to say that.

    It really isn’t that complicated.

  4. anjin-san says:

    @ Eric Florack

    OMG! Obama said something stupid seven years ago! That’s it dude, you win. You have let all of the air out of the Obama balloon. He is done.

    The rest of us simply can’t keep pace with a modern day Machiavelli such as yourself.

  5. Eric Florack says:

    @Steven L. Taylor:

    Um, no. he was correct, then… a rare happening, certainly.
    ITS CORRECT TO SAY IT NOW, AS WELL.

    if we are to be consistent, anyway…..

  6. OzarkHillbilly says:

    Supreme Court anyone? Not sure but should it not be accessible in such a situation?

  7. Is there some sort of procedure (anagolous to a Certified Question from a lower court) by which the executive branch can formally ask the Supreme Court to rule on which of the laws in question wins in a conflict like this?

  8. BTW, another piece to the puzzle here is the Congressional Budget and Impoundment Control Act of 1974, which explicitly makes it illegal for the President to not spend money appropriated by congress.

    In a fight between the debt limit law and this law, which wins?

  9. Bob @ youngstown says:

    I think you mean extortion, not blackmail. Regardless, does any good flow from those kinds of activities?

    Both are criminal. Is there any doubt that the republicans ( under e tea party influence)’ are he perps?

  10. Gustopher says:

    If we hit the debt limit, and the President does anything or nothing, the House will vote on impeachment. Whether he chooses to screw the bond-holders, screw the Social Security recipients, borrow, mint a $2T platinum coin, or pay people in vouchers, the House will vote on impeachment.

    Not 100% sure they will get the votes to send it on to the Senate where it will die, however.

  11. grumpy realist says:

    @Eric Florack: So what do you suggest we do? You seem to misunderstand the trap we are in:

    1) We’ve already decided how much we are going to spend. (Allocations)
    2) We’re not bringing in enough money to cover that
    3) THEREFORE, in order to cover the gap, we have to use deficit financing.
    4) However, we’re bumping up an artificial limit on how much debt we can have. (A lot of other countries operate the same way we do, but don’t have our artificial limits.)

    Note that under law, President Obama has been charged simultaneously to
    a) pay ALL the bills (there’s Supreme Court case law that shows he can’t pick and chose what to pay)
    b) and NOT go over the limit. There’s a contradiction.

    There is one way we could get out of the problem: We could immediately raise taxes high enough to cover the already allocated funds. I’m sure, with your fear about the deficit, that you will immediately contact your congresscritters and insist they do this. After all, we’ve ALREADY SPENT the money.

  12. mantis says:

    In pursuing their mission to deprive the president the power to do anything, they will thrust even more power onto him. Now that’s some irony.

    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.

    +1000

  13. Ron Beasley says:

    I’m not a constitutional lawyer and in fact have never even played one on TV so I have a question. Since Congress allocated the money the POTUS is supposed to spend could they be in violation of the law for not approving the increase in the debt limit?

  14. An Interested Party says:

    Republicans couldn’t be so stupid as to put the president in this position as a way to attempt to impeach him, could they? Perhaps they really don’t want to put one of their own back into the White House for a good long while…

  15. steve s says:

    If Congress Won’t Raise the Debt Ceiling, Obama Will Be Forced to Break the Law.

    And then they will impeach him.

  16. steve s says:

    Tribalism and know-nothing voters mean that the Stupid Hatred Party will always win some seats. Indecency and shamelessness means crises.

    Will the Rerpublic survive the eventual crises larger than even these?

  17. angelfoot says:

    @Eric Florack:

    if we are to be consistent, anyway…..

    “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.”

    The whiny little statesmen in congress ought really reflect on that for awhile.

  18. Ernieyeball says:

    @An Interested Party: The Republican Party is still pissed about Nixon resigning and he was not even impeached.
    They wasted the taxpayers time and money to try to “even the score” when they succesfully impeached Clinton but could not remove him from office.
    The whole Pee Tardy/Birther thing is just a continuation of their mindless quest for revenge with a big dose of racism thrown in to appeal to the slimy slugs they embrace.
    (My apologies to all the gastropoda in my garden.)

  19. steve s says:

    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.

    That’s your stupid liberal academic constitution with all your book-larnin elitist professer-talk.

    The Tea Partiers are fighting for the Real American Constitution, where the Second Amendment says ‘Overthrow fake Presidents who aren’t Real Americans if you know what I mean…

  20. Ben Wolf says:

    If he acts and allows the Treasury to borrow, he is violating the law that establishes the debt ceiling.

    Not necessarily. The original purpose of the debt ceiling was not to limit U.S. borrowing but to enable Treasury to issue securities without needing Congressional approval each time. It is, at least theoretically, legal and constitutional for the executive to take steps retiring outstanding securities and thereby allowing Treasury to continue injecting new securities into the financial system. Hence the platinum coin, as I’m sure everyone recalls. In this scenario Treasury would order the coin minted, order the Fed to accept it and the currency would be credited to Treasury’s reserve account. It could then purchase outstanding government securities and void them, allowing it to issue the new securities and continue business as usual.

  21. anjin-san says:

    we’ve ALREADY SPENT the money.

    Is it any surprise that going deadbeat appeals to Florack? After all, this is a man who makes his living driving on interstate highways, built & maintained by the government. Yet he produces rabid rants against the government on a daily basis.

    But he has an answer for that. Any government activity that benefits him personally is wise, prudent, and constitutional. The rest of it? Unconstitutional, fraud, theft, and waste.

  22. Butch Bracknell says:

    @Stormy Dragon: No. The courts would likely invoke the political question doctrine, and in any case, the administration would be seeking an advisory opinion. Both are nonjusticiable.

  23. @Butch Bracknell: This would be my understanding. The Court could not get involved until after an action had been undertaken.

    Our system does not allow for advisory opinions.

  24. James Pearce says:

    @Steven L. Taylor:

    How it works is that he was wrong in 2006 to say that.

    Ha! Brilliant answer to any “But Candidate Obama would have never approved of President Obama” nonsense ever.

  25. anjin-san says:

    @ Florack

    raising the debt ceiling was the result of a lack of leadership

    ITS CORRECT TO SAY IT NOW, AS WELL.

    So the 18 times the debt ceiling was raised under Reagan were due to his failings as a leader? Thanks for clearing that up.

  26. Ernieyeball says:

    @James Pearce: Ha! Brilliant answer to any “But Candidate Obama would have never approved of President Obama” nonsense ever.

    A Republican Legislator turned President would never have a change of mind like that…Oh…wait…

    President FORD: When I was a member of the House for 25 and a half years, I used to look at the president and the vice president – those dictators at the other end, how can they be so arbitrary and difficult? Then when you shift from the legislating to the executive branch of the government, and you look at the Congress and say, why are all of those House and Senate members so irresponsible?

    http://www.npr.org/templates/story/story.php?storyId=6684841

  27. al-Ameda says:

    The 14th Amendment is of course the last resort, the final way out of this Republican-created idiocy. Of course, then the House idiots would impeach him and the Senate would not convict That seems so familiar?

  28. al-Ameda says:

    @Eric Florack:
    So, you support the GOP in their effort to leverage their animus toward Obama and ACA into a default on our federal debt securities?

  29. superdestroyer says:

    @Stormy Dragon:

    Congress has not successfully appropriated money in years. Remember, the government has been running on CR (for the most part) for the entire time that President Obama has been President. I think Congress managed to pass a Defense budget a couple of times but other parts of the government have been running on CR for five years.

    The real question is why can’t Cognress pass a real budget and pass real appropriation bills. And no, the solution is not for the Republicans to give the Democras whatever they want.

  30. superdestroyer says:

    @Gustopher:

    How does the debt limit screw the bond holders. What does the inability to borrow more money have to go with being interest on bonds. What the President would have to do is stop spending money that has not been appropriated and only cover what has to be paid now.

  31. superdestroyer says:

    @Ron Beasley:

    Congress has not allocated the money. Remember, Congress has not pass a budget bill in several years. All Congress has been doing is saying the government can keep spending at previous levels. If the gvernment cannot barrow more money, then the government can operate on the 2.6 trillion that it will take in in taxes and fess in FY14. Not being able to borrow money means that the govenment will have to really cut spending to the level of tax receipts that Americans are really willing to pay.

  32. Woody says:

    @steve s:

    Actually, the House could impeach the President right now. Gang of Newt showcased that dance move in the ’90s. They don’t need a “high crime and misdemeanor”, they need 218 votes which they presently exceed. What is “Constitutional” is whatever we decide it is.

    This is why a Constitutional question is a great one for the scholars, but not so much for the politicians. Should the GOP attempt to blow the Nation’s economic brains out, the President will cite particular Constitutional passages and then continue to pay the Nation’s bills. The corporations, the übermensch wealthy, the traditionally Democratic power bases, retirees without Fox noisepaper, and every ally we have in the world will go along because it is in their best interest to go along.

    And there will be great rending of garments on Fox, and gnashing of teeth on Rush, and POLITICO will try to win many mornings, but not a single darn will be given.

  33. Tony W says:

    Let’s dissolve parliament.

  34. john personna says:

    @superdestroyer:

    Congress has not allocated the money. Remember, Congress has not pass a budget bill in several years. All Congress has been doing is saying the government can keep spending at previous levels. If the gvernment cannot barrow more money, then the government can operate on the 2.6 trillion that it will take in in taxes and fess in FY14. Not being able to borrow money means that the govenment will have to really cut spending to the level of tax receipts that Americans are really willing to pay.

    That in full is the Tea Party idiocy. The President and Executive Branch can’t just “cut spending to the level of tax receipts.” That would be illegal.

    Three forks in the road. More spending, a clean CR, or less spending. A minority had hoped that they’d get less spending through Congress, but that isn’t working out too well for them.

    They should have taken the compromise, the clean CR, from the beginning.

  35. grumpy realist says:

    @superdestroyer: You really are dumb, aren’t you? Where do you think the money to pay the interest on the national debt (all those Federal bonds held in people’s pension systems) comes from? The Tooth Fairy?

    (Steven–sorry for the outright insulting of one of our posters, but there are certain levels of stupidity that are just unacceptable. It’s worse than just ignorance–it’s an actual refusal to learn, to look reality in the face and admit it’s different from the cute little fairy story Superdestroyer makes up in his head.)

  36. @superdestroyer:

    Congress has not successfully appropriated money in years. Remember, the government has been running on CR (for the most part) for the entire time that President Obama has been President.

    What exactly do you think a CR does? It continues the previously established appropriations.

  37. jib10 says:

    @Eric Florack: Of course, in 2006 it was a republican president and republican house and republican senate. So yeah, it is a failure of leadership if the president cant get the debt limit raised when his own party controls everything, but then that W was a failure as president has long been settled.

    If the dems controlled the house and senate and there was still a debt crisis then that WOULD be on Obama. As it is, even with the repubs controlling the house, if the debt ceiling is brought to a vote in the house it will pass. So this it totally on the people who wont let the house vote on it, the repub house leadership.

    (FWIW, Boehner seems to understand this and has said he will bring the debt limit to a vote in the house regardless of how many repubs support it. So I dont think the debt limit is really in play)

  38. Rob in CT says:

    Also, too, regarding the 2006 Obama comment: though we know now that the economy was being artificially inflated by a dangerous bubble, it wasn’t clear to all at the time. Given the unemployment rate, GDP growth, etc., it was reasonable to question the deficit at the time (though it would have been unreasonable to use the debt ceiling as actual leverage. Protest votes/grandstanding != our current situation). Obama took the opportunity, used many times by others, to basically whine about what was going on, without risking squat. You can laugh at him (I’ll join you), but you cannot compare it to the present GOP strategy.

    Republicans really ought to consider whether they want Democrats to turn this around on them. They obviously assume the Dems won’t dare, or assume the Dems are so in favor of spending – any spending – that they would never do such a thing. Well, fellas, think again. Democrats, like Republicans, like certain kinds of spending, not spending as a general rule. It is therefore entirely possible (though less likely than with the GOP) that the Dems might decide, after this bullshit, to return the favor. Imagine the Bush tax cuts had gone through but there had been no 9/11. Imagine the Dems then using the debt ceiling as leverage against the GOP, seeking to extort tax increases from the GOP that they could not get via the usual method. Imagine, for a moment, your searing rage at the perfidious libruls. That’s the future unless this stops. NOW.

  39. Bob @ Youngstown says:

    Boehner: Let’s play Global Thermonuclear Economic Meltdown.

    Joshua: A strange game. The only winning move is not to play. How about a nice game of chess?