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The Debt Limit is Unconstitutional

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January 22, 2023 1:43 p.m.

Along with a categorical refusal to negotiate on raising the debt ceiling, Democrats need to start now making the affirmative case that the debt ceiling is itself unconstitutional. Back in 2011 President Obama said he had spoken to legal scholars and concluded this was not “a winning argument.”

This again is an example of Democrats playing to the elite legal academy, credentialed opinion.

The argument that the limit on the Treasury’s borrowing authority is unconstitutional is a strong one. Not uncontested, but strong. Congress has the power to incur debt. But in the modern budgetary process Congress does that when it passes a law (the federal budget) that mandates spending which the President must carry out — legally and constitutionally. This gets lost in most of the debt limit conversations. If the Treasury cannot borrow money to finance legally mandated government functions, the President is faced with a menu of options each of which violate the law and the federal constitution. If Congress says X must be spent on Social Security and Y must be spent on defense, the President can’t simply decide not to do so. It’s the law and the President’s primary constitutional responsibility is to see that the laws be faithfully executed. Presidents have in the past argued for discretion in spending, so-called “impoundment” of funds. But the argument for that has been that the President must be allowed discretion to harmonize or balance different congressional or constitutional imperatives. Not defaulting on the debt is a major imperative.

My focus in this post isn’t to argue the history and language of the 14th amendment, which says “the validity of the public debt of the United States … shall not be questioned.” But you must make affirmative arguments, set the stage for using them when they are needed. You can’t run a faculty symposium conversation when you’re dealing with arsonists and hostage takers.

In practice, the uncertainty created by the constitutional argument would likely itself create a cloud over debt issued during the debt ceiling crisis. It would create a lesser but still real damage to the full faith and credit of the United States. The administration may also think it is tactically better to provide no way out of the impasse: no negotiations and if you don’t increase the debt ceiling the U.S. will default. That may be right. But in an era of increasingly laughable constitutional interpretations, no one should be afraid to make the correct argument which is that attempts to default on the U.S. federal debt are themselves forbidden by the constitution and that Congress itself approves the borrowing when it mandates spending by law.

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