Skip to main content

Obama should override the debt ceiling

By Neil H. Buchanan and Michael C. Dorf, Special to CNN
January 11, 2013 -- Updated 1618 GMT (0018 HKT)
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
October 1, 2014 -- Updated 1947 GMT (0347 HKT)
Julian Zelizer says Jimmy Carter's message about the need to restore trust in public officials is a vital one, decades after the now 90-year-old he first voiced it
October 2, 2014 -- Updated 1309 GMT (2109 HKT)
Ford Vox says mistakes and missed opportunities along the line to a diagnosis of Ebola in a Liberian man have put Dallas residents at risk of fatal infection
October 2, 2014 -- Updated 1311 GMT (2111 HKT)
Pepper Schwartz says California is trying, but its law requiring step-by-step consent is just not the way hot and heavy sex proceeds on college campuses
October 2, 2014 -- Updated 0217 GMT (1017 HKT)
Mike Downey says long-suffering fans, waiting for good playoff news since 1985, finally get something to cheer about
October 1, 2014 -- Updated 2139 GMT (0539 HKT)
Steve Israel saysJohn Boehner's Congress and the tea party will be remembered for shutting down government one year ago
October 2, 2014 -- Updated 1215 GMT (2015 HKT)
Yep. You read the headline right, says Peter Bergen, writing on the new government that stresses national unity
October 1, 2014 -- Updated 2312 GMT (0712 HKT)
Hong Kong's pro-democracy demonstrators are but the latest freedom group to be abandoned by the Obama administration, says Mike Gonzalez
September 30, 2014 -- Updated 1653 GMT (0053 HKT)
Jeff Yang calls Ello a wakeup call to Facebook and Twitter, and a sign of hope for fast-rising upstarts Pinterest and Snapchat.
October 1, 2014 -- Updated 1423 GMT (2223 HKT)
Paul Waldman says the Secret Service should examine its procedures to make sure there are no threats to the White House--but without losing the openness so valuable to democracy
October 1, 2014 -- Updated 1455 GMT (2255 HKT)
Jesse Williams says the videotape and 911 call that resulted in police gunning down John Crawford at a Walmart reveals the fatal injustice of racial assumptions
September 30, 2014 -- Updated 2303 GMT (0703 HKT)
Mel Robbins says officials should drop the P.C. pose: The beheading in Oklahoma was not workplace violence. Plenty of evidence shows Alton Nolen was an admirer of ISIS.
September 30, 2014 -- Updated 1911 GMT (0311 HKT)
The Occupy Central movement has already achieved much by bringing greater attention to Hong Kong's struggle for democracy, William Piekos says..
September 30, 2014 -- Updated 1911 GMT (0311 HKT)
The Occupy Central movement has already achieved much by bringing greater attention to Hong Kong's struggle for democracy, writes William Piekos.
September 30, 2014 -- Updated 1413 GMT (2213 HKT)
As Prime Minister Narendra Modi visits America, Madeleine Albright says a world roiled by conflict needs these two great democracies to commit to moving their partnership forward
September 30, 2014 -- Updated 1404 GMT (2204 HKT)
John Sutter: Lake Providence, Louisiana, is the parish seat of the "most unequal place in America." And until somewhat recently, the poor side of town was invisible on Google Street View.
September 29, 2014 -- Updated 1311 GMT (2111 HKT)
Julian Zelizer says in the run up to the 2016 election the party faces divisions on its approach to the U.S.'s place in the world
September 29, 2014 -- Updated 1419 GMT (2219 HKT)
Ruben Navarrette says Common Core supporters can't devise a new set of standards and then fail to effectively sell it.
September 30, 2014 -- Updated 1329 GMT (2129 HKT)
Earlier this month, Kenyans commemorated the heinous attack on the Westgate Mall in Nairobi.
September 30, 2014 -- Updated 1859 GMT (0259 HKT)
David Wheeler says Colorado students are right to protest curriculum changes that downplays civil disobedience.
September 27, 2014 -- Updated 0158 GMT (0958 HKT)
Sally Kohn says when people click on hacked celebrity photos or ISIS videos, they are encouraging the bad guys.
September 26, 2014 -- Updated 1155 GMT (1955 HKT)
Loren Bunche says she walked by a homeless man every day and felt bad about it -- until one day she paused to get to know him
September 30, 2014 -- Updated 1332 GMT (2132 HKT)
ISIS grabs headlines on social media, but hateful speech is no match for moderate voices, says Nadia Oweidat.
September 29, 2014 -- Updated 1233 GMT (2033 HKT)
A new report counts jihadists fighting globally. The verdict? The threat isn't that big, says Peter Bergen.
September 23, 2014 -- Updated 2137 GMT (0537 HKT)
Ebola could become the biggest humanitarian disaster in a generation, writes former British Prime Minister Tony Blair
September 26, 2014 -- Updated 1658 GMT (0058 HKT)
ISIS has shocked the world. But will releasing videos of executions backfire? Four experts give their take.
September 26, 2014 -- Updated 1439 GMT (2239 HKT)
Eric Holder kicked off his stormy tenure as attorney general with a challenge to the public that set tone for six turbulent years as top law-enforcement officer.
September 26, 2014 -- Updated 1309 GMT (2109 HKT)
LZ Granderson says Obama was elected as a war-ending change agent, not a leader who would leave behind for his successor new engagement in Iraq and Syria. Is he as disappointed as the rest of us?
September 24, 2014 -- Updated 0910 GMT (1710 HKT)
Gayle Lemmon says the question now is how to translate all the high-profile feminizing into real gains for women
ADVERTISEMENT