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Bargaining in the Shadow of the Debt Ceiling: When Negotiating over Spending and Tax Laws, Congress and the President Should Consider the Debt Ceiling a Dead Letter

23 Pages Posted: 21 Feb 2013 Last revised: 19 Mar 2013

Neil H. Buchanan

George Washington University Law School

Michael C. Dorf

Cornell Law School

Date Written: February 18, 2013

Abstract

If the debt ceiling is inconsistent with existing spending and taxing laws, what must the President do? In earlier work, we argued that when Congress creates a “trilemma” — making it impossible for the President to spend as much as Congress has ordered, to tax only as much as Congress has ordered, and to borrow no more than Congress has permitted — the Constitution requires the President to choose the least unconstitutional path. In particular, he must honor Congress’s decisions and priorities regarding spending and taxing, and he must issue enough debt to do so. Here, we extend the analysis in two ways. First, we rebut several recently-advanced arguments that purport to dissolve the trilemma. We explain that upon close inspection some such arguments amount to non-sequiturs, while one potentially promising solution would merely substitute a nondelegation violation for a separation-of-powers violation. Second, we ask whether our original analysis changes if both Congress and the President, when they pass the annual appropriations measures, knowingly create a trilemma. We conclude that the answer does not change, that is, that spending and taxing laws must still take precedence over the debt ceiling. Accordingly, the debt ceiling is effectively a dead letter, and both Congress and the President should treat it as such.

Keywords: congress, spending, president, tax, borrow, debt ceiling

Suggested Citation

Buchanan, Neil H. and Dorf, Michael C., Bargaining in the Shadow of the Debt Ceiling: When Negotiating over Spending and Tax Laws, Congress and the President Should Consider the Debt Ceiling a Dead Letter (February 18, 2013). Columbia Law Review, Vol. 113, No. 32, pp. 32-54, 2013; Cornell Legal Studies Research Paper No. 13-62. Available at SSRN: https://ssrn.com/abstract=2220439 or http://dx.doi.org/10.2139/ssrn.2220439

Neil H. Buchanan

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-3875 (Phone)

Michael C. Dorf (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

HOME PAGE: http://www.lawschool.cornell.edu/faculty/bio.cfm?id=333

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