Skip to main content

Obama should override the debt ceiling

By Neil H. Buchanan and Michael C. Dorf, Special to CNN
updated 11:18 AM EST, Fri January 11, 2013
Press secretary Jay Carney tells reporters the White House will not negotiate with Congress about raising the debt ceiling.
Press secretary Jay Carney tells reporters the White House will not negotiate with Congress about raising the debt ceiling.
STORY HIGHLIGHTS
  • Writers: Debt ceiling puts Obama in a trap; executing law means violating others
  • A president cannot authorize spending, taxing or borrowing to avoid ceiling, they say
  • Writers: He should borrow exactly enough money to implement Congress' budget
  • That move would be the least unconstitutional solution to his "trilemma," they say

Editor's note: Neil H. Buchanan is an economist and professor of law at George Washington University Law School. Michael C. Dorf, a former law clerk for U.S. Supreme Court Justice Anthony Kennedy, is the Robert S. Stevens Professor of Law at Cornell University Law School. Their article on the president's options in the face of the debt ceiling impasse appeared in the October 2012 issue of the Columbia Law Review, with a recent follow-up appearing in the online edition of the same journal.

(CNN) -- President Barack Obama might soon find himself in a quandary in which basic arithmetic prevents him from faithfully executing all of the laws Congress has passed. The debt ceiling statute prohibits borrowing enough money to make up the difference between funds in the Treasury and legal obligations to spend.

Anything the president does would violate some law. Indeed, anything he does would be unconstitutional because all of the relevant powers -- spending, taxing and borrowing -- belong to Congress.

Michael Dorf
Michael Dorf
Neil Buchanan
Neil Buchanan

Many Washington insiders have assumed that if Congress fails to raise the debt ceiling, Obama could simply cut spending. But constitutional history says otherwise.

When President Richard Nixon tried to "impound" money that Congress had ordered him to spend, the courts slapped him down. During Bill Clinton's administration, the Supreme Court ruled that the president has only a limited ability to cut spending even with congressional authorization. He has no constitutional power to cut spending without such authorization.

If every action the president might plausibly take would usurp a power of Congress, what should he do? He should minimize the usurpation.

During the Civil War, President Abraham Lincoln unilaterally suspended habeas corpus. Lincoln argued that if that decision was unconstitutional, it was nonetheless necessary to avoid a greater evil: violating his constitutional oath to defend the Union. Faced with a dilemma, Lincoln chose the less unconstitutional course.

Become a fan of CNNOpinion
Stay up to date on the latest opinion, analysis and conversations through social media. Join us at Facebook/CNNOpinion and follow us @CNNOpinion on Twitter. We welcome your ideas and comments.



Become a fan of CNNOpinion
Stay up to date on the latest opinion, analysis and conversations through social media. Join us at Facebook/CNNOpinion and follow us @CNNOpinion on Twitter. We welcome your ideas and comments.



The same goes for this president from Illinois. If Congress creates a trilemma, he must choose the least unconstitutional option.

Some commentators suggest that the Treasury could generate $2 trillion for the government by minting two platinum coins, using an obscure law that was enacted for the express purpose of creating memorabilia. But doing so would be economically equivalent to borrowing $2 trillion and thus, even if technically legal, would violate the substance of the debt ceiling law.

In a constitutional crisis, analysis should rest on constitutional principles, not technicalities. The core issue is separation of powers: What course of action would minimize the executive taking over legislative authority?

The answer is violating the debt ceiling, not cutting spending or raising taxes. By borrowing exactly enough money to cover the difference between funds in the Treasury and expenditures required by law, the president would simply be implementing Congress' budget.

Let's make a deal
Dems push for $1 trillion tax revenue
Welcoming the freshman class

By contrast, a presidential decision to raise taxes or cut spending would require many policy-laden judgments: Whose taxes would be raised and by how much? What expenditures would be cut, to what degree and according to what criteria?

For the president to make these quintessentially legislative judgments on his own would usurp power on an enormous scale. Issuing debt beyond the debt ceiling would be unconstitutional but not as unconstitutional as raising taxes or cutting spending.

Despite some confusion, Obama has kept the least unconstitutional option on the table. In December, White House press secretary Jay Carney said that the "administration does not believe that the 14th Amendment gives the president the power to ignore the debt ceiling."

That observation is beside the point. True, some scholars argue that the debt ceiling violates Section 4 of the 14th Amendment. If so, then the debt ceiling is void and the president's power to borrow money comes, not from the 14th Amendment, but from the statute authorizing the Treasury secretary to "borrow on the credit of the United States government amounts necessary for expenditures authorized by law."

Putting aside the 14th Amendment, Carney's claim at most shows that unilaterally raising the debt ceiling would override Congress' borrowing authority. But that merely states one horn of the trilemma. Unilaterally raising taxes or cutting spending would usurp more congressional authority.

Our leaders can still act responsibly by raising the debt ceiling or, better yet, by repealing it entirely. Congress can then control federal debt simply by paying attention to the gap between spending and taxes. It should not force the president to usurp one of its powers.

But if Congress leaves the president no constitutional options, he must choose the least unconstitutional one: borrowing money beyond the debt ceiling.

Follow @CNNOpinion on Twitter

Join us at Facebook/CNNOpinion

The opinions in this commentary are solely those of the writers.

ADVERTISEMENT
Part of complete coverage on
updated 9:42 PM EST, Fri December 19, 2014
Conservatives know easing the trade embargo with Cuba is good for America. They should just admit it, says Fareed Zakaria.
updated 8:12 PM EST, Fri December 19, 2014
We're a world away from Pakistan in geography, but not in sentiment, writes Donna Brazile.
updated 12:09 PM EST, Fri December 19, 2014
How about a world where we have murderers but no murders? The police still chase down criminals who commit murder, we have trials and justice is handed out...but no one dies.
updated 6:45 PM EST, Thu December 18, 2014
The U.S. must respond to North Korea's alleged hacking of Sony, says Christian Whiton. Failing to do so will only embolden it.
updated 4:34 PM EST, Fri December 19, 2014
President Obama has been flexing his executive muscles lately despite Democrat's losses, writes Gloria Borger
updated 2:51 PM EST, Thu December 18, 2014
Jeff Yang says the film industry's surrender will have lasting implications.
updated 4:13 PM EST, Thu December 18, 2014
Newt Gingrich: No one should underestimate the historic importance of the collapse of American defenses in the Sony Pictures attack.
updated 7:55 AM EST, Wed December 10, 2014
Dean Obeidallah asks how the genuine Stephen Colbert will do, compared to "Stephen Colbert"
updated 12:34 PM EST, Thu December 18, 2014
Some GOP politicians want drug tests for welfare recipients; Eric Liu says bailed-out execs should get equal treatment
updated 8:42 AM EST, Thu December 18, 2014
Louis Perez: Obama introduced a long-absent element of lucidity into U.S. policy on Cuba.
updated 12:40 PM EST, Tue December 16, 2014
The slaughter of more than 130 children by the Pakistani Taliban may prove as pivotal to Pakistan's security policy as the 9/11 attacks were for the U.S., says Peter Bergen.
updated 11:00 AM EST, Wed December 17, 2014
The Internet is an online extension of our own neighborhoods. It's time for us to take their protection just as seriously, says Arun Vishwanath.
updated 4:54 PM EST, Tue December 16, 2014
Gayle Lemmon says we must speak out for the right of children to education -- and peace
updated 5:23 AM EST, Wed December 17, 2014
Russia's economic woes just seem to be getting worse. How will President Vladimir Putin respond? Frida Ghitis gives her take.
updated 1:39 AM EST, Wed December 17, 2014
Australia has generally seen itself as detached from the threat of terrorism. The hostage incident this week may change that, writes Max Barry.
updated 3:20 PM EST, Fri December 12, 2014
Thomas Maier says the trove of letters the Kennedy family has tried to guard from public view gives insight into the Kennedy legacy and the history of era.
updated 9:56 AM EST, Mon December 15, 2014
Will Congress reform the CIA? It's probably best not to expect much from Washington. This is not the 1970s, and the chances for substantive reform are not good.
updated 4:01 PM EST, Mon December 15, 2014
From superstorms to droughts, not a week goes by without a major disruption somewhere in the U.S. But with the right planning, natural disasters don't have to be devastating.
updated 9:53 AM EST, Mon December 15, 2014
Would you rather be sexy or smart? Carol Costello says she hates this dumb question.
updated 5:53 PM EST, Sun December 14, 2014
A story about Pope Francis allegedly saying animals can go to heaven went viral late last week. The problem is that it wasn't true. Heidi Schlumpf looks at the discussion.
updated 10:50 AM EST, Sun December 14, 2014
Democratic leaders should wake up to the reality that the party's path to electoral power runs through the streets, where part of the party's base has been marching for months, says Errol Louis
updated 4:23 PM EST, Sat December 13, 2014
David Gergen: John Brennan deserves a national salute for his efforts to put the report about the CIA in perspective
updated 9:26 AM EST, Fri December 12, 2014
Anwar Sanders says that in some ways, cops and protesters are on the same side
updated 9:39 AM EST, Thu December 11, 2014
A view by Samir Naji, a Yemeni who was accused of serving in Osama bin Laden's security detail and imprisoned for nearly 13 years without charge in Guantanamo Bay
updated 12:38 PM EST, Sun December 14, 2014
S.E. Cupp asks: How much reality do you really want in your escapist TV fare?
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT