Why the President Should Ignore the Debt Ceiling

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According to some legal scholars, doing nothing might be the "least unconstitutional" option for Obama.

obama-walking.jpgReuters

I wouldn't like to play basketball with Barack Obama, but cards are a different question. He strikes me as the kind of poker player who might offhandedly announce to the table, "In case you're wondering, I'm not holding pocket aces."

That reflection was sparked by the announcement Friday by White House Press Secretary Jay Carney that "this administration does not believe that the 14th Amendment gives the president the power to ignore the debt ceiling -- period."

Thus once again, the President has communicated to the opposition in the House that they needn't fear an end run if they decide to hold the debt ceiling--and the world economy--hostage when the U.S. public debt bumps up against the statutory debt ceiling early next year.

If I were running things, the White House would have said nothing one way or the other about the unilateral option. But I might have casually pointed out a new article by Cornell Law Professor Michael Dorf and George Washington University Law Professor Neil H. Buchanan.

Buchanan is well known for his work in federal taxation, economic policy, budgeting, and debt; Dorf is similarly well regarded among mainstream constitutional scholars. When these authors speak, people in those fields don't laugh. In their article, "How To Choose the Least Unconstitutional Option: Lessons for the President (and Others) from the Debt Ceiling Standoff," the two scholars make an exhaustive study of how a president should respond to an attempt to hijack the debt ceiling.

Their conclusion: "faced with this choice among unconstitutional options, the president should choose the 'least unconstitutional' course---here, ignoring the debt ceiling." But that's not all. They argue further that "if the bond markets would render such debt inadequate to close the gap, the President should unilaterally raise taxes rather than unilaterally cut spending."

This is a remarkable piece of analysis by two scholars who cannot be dismissed--as many of us discussing this issue last year were--as "frauds" or "hacks." Buchanan and Dorf make a comprehensive survey of the history of the debt ceiling and of the meaning of Section Four of the Fourteenth Amendment, which states that "[t]he validity of the public debt of the United States, authorized by law, . . . shall not be questioned." Their conclusions are not easily ignored. The White House wouldn't need to have endorsed their theory. It would hang there, like the two cards face down in front of a poker player.

Section Four has come a long way in the past 18 months. When I first began writing about it last year (at that point, only the great progressive lawyer Thomas Geoghegan had publicly discussed it), most people though the idea was insane. (At a House hearing on the debt-ceiling issue, Barney Frank, on the basis of my writings on the subject, accused me personally of believing Elvis was still alive. For the record, I am aware that he died last year.)

Since then, it has been embraced by Bill Clinton as an option for a president, and has even come to the attention of House Minority Leader Nancy Pelosi, who recently said about the debt-ceiling issue, "I'm with the 11th Amendment, so. Is it the 11th Amendment? That--14th is it? Whatever it is, I'm with the Constitution of the United States."

Obama, however, has apparently taken it off the table. No pistol at the knife fight for this President.

I am not at all sure that I think the president can or should invoke Section Four to breach the debt ceiling if the House Republicans refuse to due their constitutional duty. I am sure that presidents throughout American history have dealt with obstreperous Congresses by keeping them uncertain about what will happen if they refuse to do business. Like King Lear, presidents sometimes muse idly that

     I will do such things,--
What they are, yet I know not: but they shall be
The terrors of the earth.

Executive unilateralism may be a bad thing, but unilateral disarmament is often also a mistake.

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Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

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