Law professors Eric Posner and Adrian Vermeule, authors of The Executive Unbound: After the Madisonian Republic, have an NYT op-ed arguing President Obama should announce he will raise the debt ceiling unilaterally if a deal is not soon reached.
Our argument is not based on some obscure provision of the 14th amendment, but on the necessities of state, and on the president’s role as the ultimate guardian of the constitutional order, charged with taking care that the laws be faithfully executed.
When Abraham Lincoln suspended habeas corpus during the Civil War, he said that it was necessary to violate one law, lest all the laws but one fall into ruin. So too here: the president may need to violate the debt ceiling to prevent a catastrophe — whether a default on the debt or an enormous reduction in federal spending, which would throw the country back into recession.
A deadlocked Congress has become incapable of acting consistently; it commits to entitlements it will not reduce, appropriates funds it does not have, borrows money it cannot repay and then imposes a debt ceiling it will not raise. One of those things must give; in reality, that means that the conflicting laws will have to be reconciled by the only actor who combines the power to act with a willingness to shoulder responsibility — the president.
UPDATE: Marty Lederman comments on Posner and Vermeule’s “striking” vision of “unilateral Executive power” here.