Is the debt ceiling constitutional? This received some play in 2011 but over at the Atlantic Garret Epps takes a look at it again. If the debt limit is not raised the President (The Treasury Department) will in effect have to decide how to violate 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.”
Since the debt ceiling has always been approve in the past it’s constitutionality has never been tested. Perhaps that’s why it has always been increased in the past. Congress saw it as a tool, a hammer if you will and didn’t want to risk loosing a valuable tool. Fast forward to 2013 and we have a minority of the majority in one house of congress who are essentially suicide bombers ready to blow up not just the U.S. economy but the world economy just to bring down the President they hate. It is also a matter of national security.
A default on the debt poses an existential threat to both the nation and the world economy. Experts I trust worry that it could precipitate a new 1929-style global depression. It would be in the economic sphere the rough equivalent of a sudden attack on the United States. No one would question that a commander-in-chief could respond to such an attack — even if Congress refused to act in the face of the threat. In that situation, the members of Congress, not the president, would be in violation of their oaths.
If a president sits by and allows the world economy to collapse, that president might be held to have violated his oath. If a president refuses to sit by, the same charge can be made. In either case, the question could only be resolved by impeachment proceedings. After that, we will know who has the power, for good or ill.
If I were president, I think, I’d rather be impeached for acting than for standing by.
If he ignores the debt ceiling the House Republicans will certainly try to impeach him – that will fail and we all know how well that worked out for them last time. The President should continue to be unwilling to compromise on this. Maybe Boehner will blink but if not we may once and for all determine the constitutionality of this “fiscal equivalent of the human appendix — a law with no discoverable purpose,”