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.
keyboard shortcuts: V vote up article J next comment K previous comment