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 12:11 PM EDT, Fri August 29, 2014
Leon Aron says the U.S. and Europe can help get Russia out of Ukraine by helping Ukraine win its just war, sharing defense technologies and intelligence
updated 1:24 PM EDT, Fri August 29, 2014
Timothy Stanley the report on widespread child abuse in a British town reveals an institutional betrayal by police, social services and politicians. Negligent officials must face justice
updated 9:06 PM EDT, Fri August 29, 2014
Peter Bergen and David Sterman say a new video of an American suicide bomber shows how Turkey's militant networks are key to jihadists' movement into Syria and Iraq. Turkey must stem the flow
updated 11:16 AM EDT, Thu August 28, 2014
Whitney Barkley says many for-profit colleges deceive students, charge exorbitant tuitions and make false promises
updated 10:34 AM EDT, Fri August 29, 2014
Mark O'Mara says the time has come to decide whether we really want police empowered to shoot those they believe are 'fleeing felons'
updated 10:32 AM EDT, Thu August 28, 2014
Bill Frelick says a tool of rights workers is 'naming and shaming,' ensuring accountability for human rights crimes in conflicts. But what if wrongdoers know no shame?
updated 10:43 PM EDT, Thu August 28, 2014
Jay Parini says, no, a little girl shouldn't fire an Uzi, but none of should have easy access to guns: The Second Amendment was not written to give us such a 'right,' no matter what the NRA says
updated 1:22 PM EDT, Sat August 30, 2014
Terra Ziporyn Snider says many adolescents suffer chronic sleep deprivation, which can indeed lead to safety problems. Would starting school an hour later be so wrong?
updated 9:30 AM EDT, Fri August 29, 2014
Peggy Drexler says after all the celebrity divorces, it's tempting to ask the question. But there are still considerable benefits to getting hitched
updated 2:49 PM EDT, Fri August 29, 2014
The death of Douglas McAuthur McCain, the first American killed fighting for ISIS, highlights the pull of Syria's war for Western jihadists, writes Peter Bergen.
updated 6:42 PM EDT, Tue August 26, 2014
Former ambassador to Syria Robert Ford says the West should be helping moderates in the Syrian armed opposition end the al-Assad regime and form a government to focus on driving ISIS out
updated 9:21 AM EDT, Wed August 27, 2014
Ruben Navarrette says a great country does not deport thousands of vulnerable, unaccompanied minors who fled in fear for their lives
updated 9:19 AM EDT, Wed August 27, 2014
Robert McIntyre says Congress is the culprit for letting Burger King pay lower taxes after merging with Tim Hortons.
updated 7:35 PM EDT, Tue August 26, 2014
Wesley Clark says the U.S. can offer support to its Islamic friends in the region most threatened by ISIS, but it can't fight their war
updated 7:26 AM EDT, Wed August 27, 2014
Jeff Yang says the tech sector's diversity numbers are embarrassing and the big players need to do more.
updated 4:53 PM EDT, Tue August 26, 2014
America's painful struggle with racism has often brought great satisfaction to the country's rivals, critics, and foes. The killing of Michael Brown and its tumultuous aftermath has been a bonanza.
updated 4:19 PM EDT, Tue August 26, 2014
Ed Bark says in this Emmy year, broadcasters CBS, ABC and PBS can all say they matched or exceeded HBO. These days that's no small feat
updated 3:19 PM EDT, Tue August 26, 2014
Rick Martin says the death of Robin Williams brought back memories of his own battle facing down depression as a young man
updated 11:58 AM EDT, Tue August 26, 2014
David Perry asks: What's the best way for police officers to handle people with psychiatric disabilities?
updated 3:50 PM EDT, Mon August 25, 2014
Julian Zelizer says it's not crazy to think Mitt Romney would be able to end up at the top of the GOP ticket in 2016
updated 4:52 PM EDT, Mon August 25, 2014
Roxanne Jones and her girlfriends would cheer from the sidelines for the boys playing Little League. But they really wanted to play. Now Mo'ne Davis shows the world that girls really can throw.
updated 12:29 PM EDT, Mon August 25, 2014
Peter Bergen and Emily Schneider say a YouTube video apparently posted by ISIS seems to show that the group has a surveillance drone, highlighting a new reality: Terrorist groups have technology once only used by states
updated 5:04 PM EDT, Mon August 25, 2014
Kimberly Norwood is a black mom who lives in an affluent neighborhood not far from Ferguson, but she has the same fears for her children as people in that troubled town do
updated 5:45 PM EDT, Fri August 22, 2014
It apparently has worked for France, say Peter Bergen and Emily Schneider, but carries uncomfortable risks. When it comes to kidnappings, nations face grim options.
updated 1:27 PM EDT, Tue August 26, 2014
John Bare says the Ice Bucket Challenge signals a new kind of activism and peer-to-peer fund-raising.
updated 8:31 AM EDT, Fri August 22, 2014
James Dawes says calling ISIS evil over and over again could very well make it harder to stop them.
updated 9:05 PM EDT, Sat August 23, 2014
As the inquiry into the shooting of Michael Brown continues, critics question the prosecutor's impartiality.
updated 6:47 PM EDT, Fri August 22, 2014
Newt Gingrich says it's troubling that a vicious group like ISIS can recruit so many young men from Britain.
updated 10:50 AM EDT, Thu August 21, 2014
David Weinberger says Twitter and other social networks have been vested with a responsibility, and a trust, they did not ask for.
updated 7:03 AM EDT, Fri August 22, 2014
John Inazu says the slogan "We are Ferguson" is meant to express empathy and solidarity. It's not true: Not all of us live in those circumstances. But we all made them.
updated 8:23 AM EDT, Fri August 22, 2014
Retired Lt. Gen. Mark Hertling says he learned that the territory ISIS wants to control is amazingly complex.
updated 3:51 PM EDT, Wed August 20, 2014
Cerue Garlo says Liberia is desperate for help amid a Ebola outbreak that has touched every aspect of life.
updated 1:42 PM EDT, Thu August 21, 2014
Eric Liu says Republicans who want to restrict voting may win now, but the party will suffer in the long term.
updated 11:38 AM EDT, Thu August 21, 2014
Jay Parini: Jesus, Pope and now researchers agree: Wealth decreases our ability to sympathize with the poor.
updated 8:00 AM EDT, Thu August 21, 2014
Judy Melinek offers a medical examiner's perspective on what happens when police kill people like Michael Brown.
updated 6:03 PM EDT, Tue August 19, 2014
It used to be billy clubs, fire hoses and snarling German shepherds. Now it's armored personnel carriers and flash-bang grenades, writes Kara Dansky.
updated 1:27 PM EDT, Wed August 20, 2014
Maria Haberfeld: People who are unfamiliar with police work can reasonably ask, why was an unarmed man shot so many times, and why was deadly force used at all?
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT