An Essay on the President’s Constitutional Duty to Prioritize Expenditures

Abstract

In 2011, the debt-ceiling crisis led several commentators to argue that the Public Debt Clause of the Fourteenth Amendment authorized the President to continue borrowing money on the credit of the United States, even in excess of the statutory debt ceiling. In response, many scholars argued that the Clause would not authorize such action but, at most, would require the President to prioritize the spending necessary to repay the public debt. The suggestion that the Public Debt Clause imposes spending priorities prompts a broader inquiry: Do other constitutional provisions establish additional spending priorities that would more extensively govern presidential authority in case of an unfinanced budget deficit? In this essay, I will explore this question and offer a tentative, affirmative answer. Several provisions of the Constitution, including Article IV’s Invasion and Domestic Violence Clauses, the Bill of Rights, as well as the Public Debt Clause, require the United States, and the President thereof, to spend money for various purposes, including (1) to maintain the functional existence of the Union and the states, (2) to preserve their republican character, and (3) to secure certain rights to individuals, including all federal criminal defendants, some federal civil litigants, and all federal public creditors, defined broadly to include beneficiaries of some entitlement programs. These constitutional duties require the President to prioritize those expenditures. The extent of these constitutional priorities would, in the aggregate, not merely limit, but extensively eliminate, presidential discretion in the event of an unfinanced budget deficit.