Faculty Scholarship: Professor Buchanan and Professor Dorf on the Debt Ceiling

How to Choose the Least Unconstitutional Option:
Lessons for the President (and Others) from the Debt Ceiling Standoff

George Washington University Law Professor Neil H. Buchanan and Cornell University Law Professor Michael C. Dorf have been writing about the debt ceiling since the issue became a household topic in the summer of 2011. This past October, the two coauthored a Columbia Law Review article detailing the issues and providing options and guidance for the President and lawmakers.

In the article and subsequent writings and media appearances, the professors explain why a President must—as a matter of constitutional imperative—choose to issue debt in excess of the statutory limit, if the budget otherwise requires him to do so, and why even Republicans in Congress should actually want the President to issue more debt, if Congress itself is unable to find a way to do its duty and increase the debt ceiling as needed.

On January 10, Professor Buchanan joined Joel Friedman, Vice President for Federal Fiscal Policy, Center on Budget and Policy Priorities, and David Geanacopoulos, Member, Board of Directors, Center for National Policy, for a discussion titled, "Swerving to Avoid the "Fiscal Cliff": The Debt Ceiling, Sequestration and Tax Policy in America." Please visit the Center for National Policy website to watch video of this discussion.


In the News: Professors Buchanan and Dorf on the Debt Ceiling and the Fiscal Cliff

 

Longtime friends, colleagues, and coauthors GW Law Professor Neil Buchanan and Cornell Law Professor Michael Dorf pen their latest article on the constitutionality of the debt ceiling, influencing the discussions on this timely topic.
The New York Times' "Room for Debate"  .  January 14, 2013

CNN  .  January 11, 2013

The Hill  .  January 8, 2013

Verdict  .  January 8, 2013

NPR "On Point"  .  January 7, 2013

WTOP  .  January 2, 2013

Fiscal Times  .  December 21, 2012

Verdict  .  December 20, 2012

Dorf on Law  .  December 14, 2012

The Atlantic  .  December 7, 2012

NPR  .  December 6, 2012

Verdict  .  December 5, 2012

Roll Call  .  December 5, 2012

The New York Times  .  December 3, 2012


"How to Choose the Least Unconstitutional Option: Lessons for the President (and Others) from the Debt Ceiling Standoff"
(Executive Summary)

Overriding the Debt Ceiling is the “Least Unconstitutional” Option

If Congress enacts no legislation raising the debt ceiling, 31 U.S.C. § 3101, the President will soon face a virtually unprecedented situation in which any action he might plausibly take would be unconstitutional. Law professors Neil H. Buchanan and Michael C. Dorf argue in two recent articles that under such circumstances, the President would be obligated to choose the "least unconstitutional" option, and borrow money beyond the limit of the debt ceiling: "How to Choose the Least Unconstitutional Option: Lessons for the President (and Others) From the Debt Ceiling Standoff," 112 COLUM. L. REV. 1175 (2012); "Nullifying the Debt Ceiling Threat Once and for All: Why the President Should Embrace the Least Unconstitutional Option," 112 COLUM. L. REV. SIDEBAR 237 (2012).

To make up the difference between funds in the Treasury and government obligations, the President could attempt to raise taxes or borrow money beyond the debt ceiling's limit, but Article I, § 8 of the Constitution assigns the powers to tax and to borrow to Congress, not to the President. Likewise, Article I, § 8 gives the power to spend to Congress, and so a decision by the President to refuse to spend appropriated funds would also be unconstitutional. As the Supreme Court has made clear, the President has only a limited ability to cut spending even with Congressional authorization. See Clinton v. City of New York, 524 U.S. 417, 449 (1998). He has no constitutional authority to cut spending without such authorization.

If every action the President might plausibly take would usurp a power of Congress, what should he do? Buchanan and Dorf contend that he should minimize the usurpation and that means borrowing beyond the debt ceiling. By borrowing exactly enough money to cover the difference between funds in the Treasury and expenditures required by law, the President would be implementing Congress's budget and exercising very little policy discretion. By contrast, a Presidential decision to raise taxes or cut spending would require myriad further policy-laden judgments: If taxes are to be raised, whose taxes, and by how much? If spending is to be cut, which government payees would be prioritized, to what degree, and according to what criteria? These are quintessentially legislative judgments that the President simply cannot make on his own in our system of separation of powers. Issuing debt beyond the debt ceiling would be unconstitutional but not as unconstitutional as raising taxes or cutting spending.

Despite some confusion, President Obama has not taken the least unconstitutional option off of the table. In December 2012, White House Press Secretary Jay Carney stated 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 for two reasons.

First, some scholars argue that the debt ceiling is itself unconstitutional as a violation of 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." 31 U.S.C. § 3104(a).

Putting aside the 14th Amendment, Carney’s claim at most shows that unilaterally raising the debt ceiling would usurp Congress's borrowing authority. But that merely states one horn of the "trilemma." Unilaterally raising taxes or cutting spending would usurp more Congressional authority. If Congress leaves the President no constitutional options, he must choose the least unconstitutional option: borrowing money beyond the debt ceiling.

Please visit Columbia Law Review to read the complete article, "How to Choose the Least Unconstitutional Option: Lessons for the President (and Others) from the Debt Ceiling Standoff."


Neil H. Buchanan is an economist and legal scholar, a Professor of Law at The George Washington University, and a Senior Fellow at the Taxation Law and Policy Research Institute, Monash University (Melbourne, Australia). He teaches tax law, tax policy, contracts, and law and economics. His research addresses the long-term tax and spending patterns of the federal government, focusing on budget deficits, the national debt, health care costs, and Social Security. He also is engaged in a long-term research project that asks how current policy choices should be shaped by concerns for the interests of future generations.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has written hundreds of popular essays, dozens of scholarly articles, and four books on constitutional law and related subjects, including, most recently, The Oxford Introductions to U.S. Law: Constitutional Law. Professor Dorf blogs at Justia Verdict and Dorf on Law.