What Can Be Done about the Debt Ceiling?

The NYT “Room for Debate” feature focuses on how the President should respond if Congress fails to increase the debt ceiling. Among the contributors is Harvard’s Laurence Tribe. After explaining why the President cannot unilaterally disregard the debt ceiling (expanding on arguments he made in 2011), Tribe considers the alternative:

A second approach calls for the Treasury to “prioritize” the payment of bondholders when allocating incoming tax revenues. But prioritization comes at a cost: the very reason we need to borrow is that incoming revenues don’t cover all our spending. So prioritization requires skipping other payments mandated by law — perhaps payments on Social Security, Medicare and defense.

From a constitutional perspective, this approach is preferable to outright default, because it would ensure that the 14th Amendment’s basic promise is kept. It is likewise constitutionally preferable to unilaterally ignoring the debt ceiling, because it does not entail the presidential usurpation of a power specifically committed to the legislative branch. Apart from the technically legal but wildly unrealistic device of minting a trillion-dollar platinum coin, prioritization is the approach that does the least violence to the Constitution.

Tribe thinks this approach is inadequate, but is the least bad — and least constitutionally problematic — alternative. On this point I think Tribe is definitely correct. The alternative argument, made by Neil Buchanan, that it is simpler and less constitutionally suspect to simply issue more debt is unpersuasive. First, such a move involves the affirmative usurpation of a power reserved to the legislature — and such usurpation is more problematic than the refusal to execute a legislative command, such as by refusing to spend appropriated funds. Second, authorizing debt without clear constitutional authority to do so raises the prospect of the precise evil Section 4 of the 14th Amendment was intended to prevent: casting doubt on the debts of the United States.

As Tribe notes, it would be better were the debt ceiling not an issue at all. As he concludes: “we cannot find solutions to all of society’s problems in the Constitution.” Sometimes political leaders actually have to make politically difficult decisions.

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