| Abstrakt: |
Pursuant to its power to borrow money on the credit of the United States, Congress has periodically permitted the Executive Branch to incur debt subject to a steadily-increasing statutory limit--the so-called "debt ceiling." As the national debt climbs, bitter debate over whether the statutory ceiling should be raised, with the specter of default looming, has become a recurring phenomenon. Many scholars of constitutional law think their field of study offers an escape from the debt ceiling, though their proposed solutions vary. There is, at present, no published legal scholarship that defends the constitutionality of the debt ceiling, which could lead policymakers to overestimate the debt ceiling's legal vulnerability. This Article, in contrast, contends that the legal theories for negating the debt ceiling are unconvincing. It proceeds in four parts. Part I discusses the Fourteenth Amendment's Public Debt Clause. Though that Clause likely prohibits default on the national debt, it requires no more that the President pay the costs of debt service while reducing or halting other spending once the government hits the debt ceiling. Much of the government may shut down, but prioritizing spending on debt service avoids the only thing forbidden by the Public Debt Clause--default. Part II discusses the claim that the President may breach the debt ceiling when necessary to fund appropriations. The President, however, is under a constitutional obligation to faithfully execute the laws. This requires the President to respect, rather than breach, the debt ceiling. It is, after all, one of the "laws" that the President is obligated to faithfully execute. This can be done by treating appropriations laws as contingent on compliance with the debt ceiling, consistent with ordinary rules for statutory interpretation. Part III addresses the exotic options. Issuing a trillion-dollar platinum coin or novel bonds are likely unlawful breaches of the statutory debt ceiling, but, even if not, this gambit would be of no use if Congress and the President cannot reach an agreement on the annual federal budget. At that point, appropriations lapse, and the government must shut down anyway. The exotic options come with considerable legal and financial risk; they buy, at best, a few months to negotiate a budget and ultimately solve nothing. Part IV discusses the implications of the conclusion that the Constitution offers no way around the debt ceiling. What seems like bad news actually is not. Although default is both unconstitutional and unlikely, the quite realistic threat of a government shutdown when the government approaches the debt ceiling usefully forces competing factions to negotiate or face a threat of retribution from the voters at the next election. This Article concludes with a discussion of a question of constitutional theory which lurks behind the scholarly dispute over the debt ceiling. Any constitutional theory must be able to answer perhaps the most fundamental question in constitutional law--why should policy debate be removed from the realm of ordinary politics and be resolved instead as a matter of constitutional law? The scholarly attacks on the constitutionality of the debt ceiling, however, fail to even consider this question. Debate over whether a statutory debt ceiling should be used to restrain government spending is precisely the sort of debate that belongs in the realm of ordinary politics, not constitutional law. [ABSTRACT FROM AUTHOR] |
