Stop Calling It The Constitutional Option

I keep seeing people writing things like, "at this point I'm just hoping the lawyers at Treasury discover that the 14th Amendment option is viable." While I completely endorse the sentiment, and the scenario in which the Administration declares, screw the debt limit, we're gonna keep issuing debt to finance the government, strikes me as pretty clearly the best end result for this debacle, I really do wish people would stop calling it the constitutional/14th Amendment option. It isn't. In fact, the 14th Amendment plays only the a minor supporting role in the logic, as I see it, of unilaterally disregarding the debt limit. Here's the argument as I see it:


As of some date in early-to-mid August, assorted laws passed by Congress will contradict themselves. The spending laws passed by Congress call for X amount of spending, while the tax laws passed by Congress only provide Y amount of revenue, where Y is substantially less than X. While the entirely standard method used by governments everywhere to deal with this situation is to borrow money on the credit of the government, Congress has also passed a law requiring that the government not take out more than Z in total outstanding debt, where Z is a number small enough that the government cannot issue the debt it needs to make up the gap between X spending and Y revenue. All familiar enough, right?

Now, the U.S. Constitution and all laws made under it may be the supreme law of the land, but there is one set of laws that the Constitution is not and cannot be higher than. That would be the laws of nature, among which the laws of simple arithmetic are to be found. So Congress has passed a set of laws that simply cannot coexist. What's a President to do? One way or another he needs to get total spending and total money, between revenue and debt, in line. So, there are only four possible options: ignore the spending laws, ignore the taxing laws, ignore the debt limit, or default on the debt. Note that Option #4 would probably occur in tandem with Option #1, though I'm not exactly sure how the math of all of that works out. Which of these four options, as a matter of constitutional practice, ought the President choose? Keep in mind, anything the President does here will violate some law. He simply cannot avoid breaking a law; it is impossible.

First of all, Option #4 is right out. This is where the 14th Amendment rears its head: if the phrase "the validity of the public debt of the United States, authorized by law...shall not be questioned" means anything, it is surely that the government cannot default on its debts. So rule that one out. Option #2 seems the next-most invalid: for the President to unilaterally raise taxes kind of seems to go against just about everything this country stands for. It's also true, of course, that the Constitution gives the power to raise taxes exclusively to Congress, and even goes so far as to give the House of Representatives a special, starring role in the process. I don't think Obama can just say, okay rich folks, pay me money so I can keep running the government.

That leaves two options: ignore the spending laws, or ignore the debt ceiling. I've heard the argument that Obama cannot choose the second of these because, as in the taxing case, Congress alone has the authority to issue debt. That's fair enough, but let's also note that the executive does not have the power to "prioritize payments," or to impound funds as Richard Nixon decided he wanted to do. Impounding funds amounts to a line-item veto, which not even Congress can give the President by simple statute. So any which way, Obama would be a) breaking a law, and b) acting without authority. He just doesn't have any choice in the matter.

But I would go a step further: yes, in the debt limit section of the U.S. code it states that the total outstanding debt issued cannot exceed such-and-such a number, just as in the Social Security section it states that payments shall be such-and-such. But it is not at all unreasonable to say that, aside from the explicit denial of authorization, Congress has also implicitly authorized such excess debt. We routinely infer declaration/authorization of war from appropriation of money for war; I don't think it's a bigger stretch to infer authorization of debt from authorization of spending in excess of tax revenue. That doesn't change the explicit forbidding of issuing this implicitly-authorized debt, but remember that the President is going to violate some law somehow. Saying "but that's illegal!" isn't a valid argument in this situation. So if the President does decide to ignore the debt limit, his argument is:

• The laws passed by Congress are self-contradictory; I must violate one of them
• In each case I also lack the authority to do what I must do
• However, Congress can be seen to have given me implicit authority to issue more debt, even though it has also forbidden me from doing so
• If I choose to ignore the law specifically prohibiting me from issuing more debt, then I find myself with the power to issue more debt
• Therefore, the option that least oversteps the boundaries of my executive power is to ignore the debt limit.

That's the argument. Note that the Constitution plays only a tiny, limited role, in saying that the "option" of defaulting on the debt is not an option. Now, the President should also want to choose this option, as it is rather clearly the least-disastrous from an economic perspective, and I might argue that if Congress is sufficiently boneheaded as to pass literally self-contradictory laws then they can't really complain if the President just chooses to ignore whichever law he favors ignoring on substantive, results-oriented grounds. But I think that the case for ignoring the debt ceiling is legitimately stronger than the cases for "prioritizing" spending, unilaterally levying new taxes, or defaulting on the debt. Here's hoping someone in the Administration is thinking along similar lines, and here's wishing that commentators would get over the 14th Amendment.*

*In this specific case; obviously, taken as a whole the 14th Amendment is the only thing that makes the U.S. Constitution good as opposed to not good.