Raise High the Roofbeam, Legislators
You know, I’d never thought about it before, but it’s obvious upon reflection that the debt ceiling is unconstitutional.
Think about it. Congress’s most fundamental jobs are to tax and to spend – the “power of the purse.” If Congress passes a budget under which revenues are insufficient to cover expenditures, the Executive has three options, theoretically:
- Borrow the difference. – Raise taxes without Congressional authorization. – Cut spending without Congressional authorization.
Either of the latter two encroach on a core legislative function. If Congress also prohibited the first option (by refusing to raise the debt ceiling) it would be impossible for the Executive to perform it’s responsibilities.
The debt ceiling is theatre, a way of forcing Congress to acknowledge the consequences of its own budgets. If the Treasury were simply to ignore the debt ceiling and borrow what was required under the operative budget, Congress would scream, but really it would get what it wants: a free pass to disclaim responsibility for its own budgetary decisions.
What was that again about democracy being the worst form of government except for all the others?
I don’t think that’s obvious at all. Just because not being able to borrow beyond a certain point limits the executive power does not make it unconstitutional. The executive is limited and constrained in all sorts of ways, including in ways that touch on the legitimate scope of the executive power. The functions of Congress place certain limits on the executives role as commander-in-chief (including budgetary oversight), even though its one of the broadest executive powers.
— Jay Daniel · May 19, 11:42 PM · #
@ Jay
If the executive can’t borrow money then the executive can’t perform it’s other duties as assigned by congress. It doesn’t make sense that one can rule out the other. This isn’t a limitation, it’s a contradiction. I agree that this isn’t really anything unusual (congress routinely defunds its own mandates) but it’s definitely playing with fire because the executive can push back.
— Console · May 20, 12:28 AM · #
The House of Representatives has the constitutional power to pass bills to appropriate money. Every fiscal year, the appropriations bills start there and then go to the Senate. If a bill is passed, the President signs it or vetoes it. All the President is under the Constitution is the Chief Executive. He gets to execute the laws that Congress passes. If Congress decides to pass a law affecting taxes and cutting spending, that is its prerogative. The President does not make law. He executes it. The Judiciary interprets it. The purpose for the debt ceiling is to call attention to the excesses out there. Congress could also pass a law requiring a balanced budget as each of the states, except Vermont, has done. The executive’s power is restricted by Congress. He cannot fund agencies on his own. He cannot pass bills. Both Congress and the President permit deficit spending for their various reasons, partly through inertia, partly through markedly different visions of what this country should be promoting, and partly through the powerful lobbyists who defend those who profit from deficit spending.
— LDM · May 20, 01:55 AM · #
Congress already appropriated the money. The budget is a separate issue from the debt ceiling. I have no clue what the bright idea is behind separating the two, but there is literally two contradictory directives from congress to the executive in appropriating money but not allowing anyone to actually get the money. I don’t know how the supreme court could seriously strike down a decision by the president to borrow money anyways.
— Console · May 20, 02:21 AM · #
If Congress wants the Supreme Court to enforce this, Congress is stupid. It needs to do its own enforcement, by cutting funds for administrations that don’t follow the rules on the debt ceiling. Congress, being corrupt and spineless, probably will not do that.
BTW, Noah does a great Alexander Hamilton on the issue of presidential power. This is not a good thing.
— The Reticulator · May 20, 06:06 AM · #
@Jay, I think Noah is saying that the debt ceiling forces the executive to make legislative decisions. You could respond that (1) Congress already delegates the power to make regulations, and (2) piling up on debt also steps on legislative power because Congress must eventually do something – if only after a debt crisis has actually happened.
I don’t think either (1) or (2) would, or should sway the Supreme Court. Nonetheless, I think it illustrates the absurdity of legislation mandating spending in any absolute way. A law to demand spending ain’t worth tuppence if there’s no wealth to spend. Entitlements should ensure the cake is divided up fairly, but every year hard work is required to bake a big damn cake.
Re enforcement: If Congress is serious it should pass a resolution threatening to wriggle out of repaying any bonds issued after the debt ceiling was exceeded. Even a hint of this, and the bond markets would do the enforcement.
— Adrian Ratnapala · May 20, 07:41 AM · #
Noah, doesn’t that beg the question of whether the government must default or cut spending in the event it hits the debt ceiling?
I mean, you could write a budget that says “Spend x on y, but not if it results in you borrowing more than z.”
I guess you could say that it’s unconstitutional to give the president discretion over which programs to cut, but if the debt limit law provides a mechanism, I don’t see the problem yet.
— J Mann · May 20, 02:11 PM · #
I’m glad this could turn into an interesting discussion. I was starting with the premise that it’s not “obvious” that the debt ceiling is unconstitutional. I think that is clear from the comments.
I won’t pretend that there are no arguments in favor of the position. I started thinking about this in terms of a thought experiment:
— imagine that Congress has passed a law (which the president has signed) creating a new federal space agency and appropriating $1.00 per year to the space agency pay for its programs.
— Congress has passed another law (which the president has signed) stating that the new agency must build a space elevator up to the international space station.
— Congress has also passed a law (which the president has signed) prohibiting any federal agency from exceeding its annual budget by 25%.
Are any of these laws unconstitutional? If so, which one? Does the fact that the president signed each of the laws affect the calculus?
Does anyone know if there is already a constitutional doctrine that prevents Congress from passing legislation that is practically impossible?
— Jay Daniel · May 20, 04:22 PM · #
It would be more like congress saying
1) you are required to borrow 1 dollar this year to spend on nasa
2) you can’t borrow any money
That’s really the issue. Congress passes a budget requiring deficit spending then says you can’t deficit spend. That’s a contradiction.
— Console · May 20, 04:41 PM · #
IMHO, it’s more like saying:
1) Cover unemployment for as much as it costs
2) Spend $10 on education, but
3) In any event, don’t borrow more than $5.
If unemployment costs $10 this year, and tax revenues are only $12, then you have to decide how the statutes are to be interpreted.
Obviously, Congress could pass a budget that explicitly said that spending should be cut by some formula to keep borrowing under a set cap. The question is whether they have done so.
— J Mann · May 20, 06:51 PM · #
I don’t follow this argument. The executive has lots of options. Selling assets is the most obvious. Seeking “gifts” from other countries (maybe from the French, in return for letting them use our air force in Libya) is another. Another option would be to issue warrants, not implicating the full faith and credit of the United States, but promising to seek congressional appropriation at a later date.
— y81 · May 20, 07:04 PM · #
The Supreme Court can strike down a federal law for one of two reasons: (1) Congress exceeded its legislative power in passing the law (see Lopez in which the Rhenquist court struck down the no-drugs for 50 feet outside this school law as outside congressional interstate commerce power), or (2) Congress actually violated a constitutional article or amendment (e.g., passing a law stating women do not have the right to vote when there is an amendment providing women the vote). That a law may be dumb or conflict with another dumb law does not fit into either of these categories. The thinking behind these interpretive strictures is that in a democratic country in which the citizenry elects people to represent it, the Congress enacts laws that the citizens want. The major purpose of the courts is to interpret those laws in such a way as to avoid absurdity because the presumption is that Congress does not pass absurd laws.
— LDM · May 21, 12:35 AM · #
What was that again about democracy being the worst form of government except for all the others?
Yup, maybe we should try something else. Perhaps, like Hillary and Barack and Tom Friedman you’d prefer the kind of power that Hu Jintao wields. He can get things done. And as long as we’re looking for “fundamental transformation” might as well double down on more socialism, too. After all, how bad can it be?
— jd · May 22, 12:38 PM · #