How to Choose the Least Unconstitutional Option: Lessons for the President (and Others) from the 2011 Debt Ceiling Standoff

Abstract

The current successor to a federal statute first enacted in 1917, and widely known as the “debt ceiling,” limits the face value of money that the United States may borrow. Congress has repeatedly raised the debt ceiling to authorize borrowing to fill the gap between revenue and spending, but in the summer of 2011, a political standoff nearly left the government unable to borrow funds to meet obligations that Congress had affirmed earlier that very year. Some commentators urged President Obama to ignore the debt ceiling and issue new bonds, in order to comply with Section 4 of the Fourteenth Amendment, which forbids “question[ing]” “[t]he validity of the public debt.” Others responded that such borrowing would violate the separation of powers and therefore that the President instead ought to refuse to spend funds that Congress had appropriated. In the end, eleventh-hour legislation averted the crisis, at least for the moment, but absent a substantial political realignment, there is reason to believe that a similar standoff could occur again.

This Article analyzes the choice the President nearly faced in summer 2011, and which he or a successor may face again, as a “trilemma” in which he had three unconstitutional options: Ignore the debt ceiling and unilaterally issue new bonds, thus usurping congressional power to borrow money; unilaterally raise taxes, thus usurping congressional power to tax; or unilaterally cut spending, thus usurping congressional power to make spending decisions and arguably violating Section 4 of the Fourteenth Amendment as well. We argue that faced with this choice among unconstitutional options, the President should choose the “least unconstitutional” course - here, ignoring the debt ceiling. We argue further, though more tentatively, that if the bond markets would render such debt inadequate to close the gap, the President should unilaterally raise taxes rather than unilaterally cut spending. We then use the debt ceiling impasse to develop general criteria for political actors to choose among unconstitutional options. Although we offer no algorithm, we emphasize three guiding principles: 1) Minimize the unconstitutional assumption of power; 2) minimize sub-constitutional harm; and 3) preserve, to the extent possible, the ability of other actors to undo or remedy constitutional violations.

Keywords: debt ceiling, constitution, unconstitutional, public debt