The President Has the Power To Raise the Debt Ceiling on His Own

[Nye Bevan]

One argument that has received some attention rests on an obscure provision in the 14th Amendment of the Constitution. It says that “The validity of the public debt of the United States … shall not be questioned.” Some commentators, like former President Clinton, argue that this clause authorizes the president to borrow money to meet existing obligations. But the provision does not mention the president or give him any authority. And in Article I, the Constitution gives the authority to borrow money to Congress. The 14th Amendment states an aspiration or goal, which would not normally trump a specific allocation of constitutional powers. The argument also fails on its own terms because the debt ceiling does not force the president to default on the public debt; he can avoid default by spending less.

Two law professors, Neil Buchanan and Michael Dorf, have argued that the president is actually constitutionally required to violate the debt ceiling rather than cut spending. To respect Congress’ will, he should follow its orders to spend rather than follow its orders not to borrow—the idea is that the spending power is somehow constitutionally fundamental to what Congress does, while the borrowing power is not. I say “somehow” because Buchanan and Dorf do not explain convincingly why that would be so.

President Obama can make a better argument. Congress has given him an impossible task: to implement a large number of costly public projects with less money than those projects cost. If he cuts spending, then he violates constitutional norms that give Congress the power to determine spending. If he raises revenues by borrowing or trying to tax people, then he violates constitutionals norms that give Congress the power to borrow or tax. In the face of contradictory instructions from Congress, the president can’t avoid choosing—by virtue of his administrative role as collector and disburser of revenues, the president must do something. Where Congress fails to provide him with consistent instructions, he has the discretion to do what he believes is in the public interest. If the economy were to be on the point of collapse, he could cite emergency powers sanctified by tradition as his authority for borrowing beyond the debt ceiling on his own. But a less drastic argument is that the power to resolve conflicting congressional orders is inherent in the president’s administrative role. Indeed, presidents frequently face conflicting statutes as they govern, and they have long enjoyed a great deal of discretion in resolving them.

So in the face of contradictory orders from Congress, President Obama should do what he believes is in the public interest. And if the House refuses to raise the debt ceiling, this surely means some combination of cutting spending, borrowing beyond the debt limit, and perhaps even searching out new sources of revenue.

http://www.slate.com/articles/news_and_politics/view_from_chicago/2013/01/debt_ceiling_president_obama_has_the_power_to_raise_the_debt_limit_without.html

(The author is a professor at the University of Chicago Law School).

If it comes to the crunch, I sincerely hope Obama does this. The sputtering purple-faced outrage from Boner and Cruz would be absolutely priceless. And being impeached by this crowd of buffoons (followed by a swift acquittal in the Senate) would be a badge of honor for President Obama IMO.

[warrior1]

1. Last time

President Obama said he wouldn't do this and I don't expect him to do this time either.

I believe that the repukes would try and impeach him if he did.

They just need to take their medicine and pass a clean CR bill.

[Nye Bevan]

4. The debt ceiling issue is separate from the clean CR (nt)

[global1]

5. Correct Me If I'm Wrong - The President Said That In HIs First Term....

Now that he's in his second term and not needing to worry about re-election - I think he is in a different position to perhaps act on this. I hope he does because it would really take the wind out of the sails of the Repug Party - that they don't have the Debt Limit fight to use as any leverage.

[Nye Bevan]

8. And being impeached over this issue would be a wholly honorable thing (nt)

[Enrique]

18. i mean this sincerely

who cares if the GOP impeaches him? An impeachment would have zero consequences for anyone. The Clinton impeachment is just a trivia question. In 2005, my entire room of co-workers didn't even know Clinton had been impeached. The boss had to look it up online to settle the argument (I took the position that he was impeached).

[geek tragedy]

2. He can't even hint that he's willing to consider it until the last split second. nt

[Nye Bevan]

3. And I don't expect him to.

But if it becomes necessary, I hope that he does.

[geek tragedy]

6. I think he will. Just declare the debt ceiling unconstitutional as it prevents him from

executing the laws Congress has instructed him to.

[Nye Bevan]

7. Or point out that he is being forced to *somehow* violate the constitution.

If it comes down to it, the Republicans will put him in a position where, one way or another, he has no choice but to violate the constitution. The only question is, which provision of the constitution should he choose to violate. And the debt ceiling is clearly the best one to choose.

[geek tragedy]

9. Not a good idea to state you're violating the constitution. Declare the debt ceiling

unconstitutional, and it's destroyed as an issue for the future.

[yodermon]

13. I'll go further, he has to actively deny that he'll do it.

I'm trying to figure out if there's a way to get the Supreme Court to adjudicate this before it happens so as not to spook the bond markets if he does. Impossible to do without telegraphing his intent though.

Minting the coin(s) is the only way left, which of course is ludicrous.

[geek tragedy]

14. No way the SCOTUS adjudicates in advance--"no advisory opinions" is a cardinal rule of theirs nt

[Fantastic Anarchist]

10. I've been one of Obama's critics ...

... but I totally agree with the article. I think Obama needs to assert himself. He's faced with a fork in the road that Congress (Tea Party) has presented him with. It's, logically, his decision to choose which road to take rather than argue with Congress about which one to take.

[PoliticAverse]

11. White House Rejects 14th Amendment to Raise Debt Ceiling

http://www.bloomberg.com/news/2013-10-01/white-house-rejects-14th-amendment-to-raise-debt-ceiling.html

[Xithras]

12. Legally, only enough to fund existing debt obligations, not to actually "run" the government.

In other words, the President can arbitrarily raise the debt ceiling enough to make payments on outstanding debts and bonds in order to prevent the U.S. from going into default. He CANNOT raise the debt ceiling enough to fund budgeted government programs.

So, the President can raise the debt ceiling in order to write our monthly debt checks to China, billionaire bondholders, and banks, but not to fund Head Start, pay food inspectors, feed hungry children, or open the national parks.

The Constitution is incredibly clear on this point...Congress, not the President, controls the purse-strings. The only budgetary power granted to the President by the 14th Amendment was the ability to avert a financial default.

[geek tragedy]

16. Social Security, Medicare, Medicaid, Obamacare are mandatory payments--he can't not pay those. nt

[Xithras]

19. But it's not "debt"

Congress passes a law requiring the Executive branch to pay $1 a day to each citizen.

Congress borrows $1 billion from China with weekly payments of $1 million.


The first is not debt, the second is. The 14th amendment only grants the President budgetary power to make payments against the DEBT of the US government, not it's self-imposed statutory obligations. It's unfair, but that's the law.

It should, of course, be pointed out that payments by the government to the Social Security Trust Fund ARE debt, and the government must continue making payments on it. Those payments aren't enough to fund the entire program though.

[geek tragedy]

20. He doesn't need to resort to the 14th Amendment for those.

He has a statutory obligation to pay them.

Also, what constitutes a 'debt' will be a political question, and he has every right to make his own determination on what constitutes a debt in such a scenario.

[kentuck]

15. I would argue...

That the President is required to make sure the laws are adhered to and are executed. The 14th Amendment is the law and Congress is violating that law. In that respect, constitutionally, the President has the authority to execute the laws. But that is a good question for the Courts to settle.

[Robbins]

17. Obama

I hope he says screw them.I am not going to let the teaparty cause a default because they don't get their way.

They try to impeach Obama It will backfire on them.Not even conservative democrats will vote to remove obama from office.Susan Collins Is done In maine if she supports removing obama from office.And just imagine ads that can be run against republicans elected in 2010 running for reelection In 2016 In Obama states with hillary Clinton as likely democratic nominee.

[Jim Lane]

21. The Impoundment Act should also be considered.

Once Congress has appropriated money, it's illegal for the President to refuse to spend it.

If you combine appropriations bills, tax cuts, the debt ceiling, and the Impoundment Act, you find that Congress has passed a set of inconsistent laws. It has thus created a situation where, regardless of what the President does, he can plausibly be accused of acting illegally.

Of course, this argument depends on there being appropriations. Right now, for much of the government, that condition isn't met. If there's no movement between now and October 17, Obama could comply with all the laws by furloughing even federal employees previously deemed essential. Separately funded operations like the Postal Service would continue. Those are the exceptions, however. The situation might be that Obama could furlough all the Border Patrol agents, creating a completely open border, and when the Republicans scream, he could point out that what he did was required by the laws that they themselves had passed (or refused to pass).

[backscatter712]

22. I'd argue that he could act as Commander in Chief.

If the loss of government spending would cause an economic downturn, that could be construed as a threat to national security, and the President could therefore act unilaterally by ordering spending restored and an interim executive-created budget put in place until Congress chooses to pass their own.