Constitutionality of the Debt Limit

[David Lockmiller]

Harvard University Professor of Constitutional Law Laurence H. Tribe
New York Times Guest Essay
May 8, 2023

The president should remind Congress and the nation, “I’m bound by my oath to preserve and protect the Constitution to prevent the country from defaulting on its debts for the first time in our entire history.” Above all, the president should say with clarity, “My duty faithfully to execute the laws extends to all the spending laws Congress has enacted, laws that bind whoever sits in this office — laws that Congress enacted without worrying about the statute capping the amount we can borrow.”

By taking that position, the president would not be usurping Congress’s lawmaking power or its power of the purse. Nor would he be usurping the Supreme Court’s power to “say what the law is,” as Chief Justice John Marshall once put it. Mr. Biden would simply be doing his duty to “take care that the laws be faithfully executed” even if doing so leaves one law — the borrowing limit first enacted in 1917 — temporarily on the cutting room floor.

Ignoring one law in order to uphold every other has compelling historical precedent. It’s precisely what Abraham Lincoln did when he briefly overrode the habeas corpus law in 1861 to save the Union, later saying to Congress, “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?”

[Gene C]

Personally, I think we've been violated enough

"It’s precisely what Abraham Lincoln did when he briefly overrode..."
Unfortunately this country is not experiencing "a brief" override of the debt limit.

https://fiscaldata.treasury.gov/americas...onal-debt/

[David Lockmiller]

(05-09-2023 08:41 AM)Gene C Wrote:  Personally, I think we've been violated enough

New York Times
The Morning
May 9, 2023

After Congress created a debt limit in 1917, it remained little more than a technicality for decades. Congress’s big fights over government spending would largely center on the federal budget, which sets taxes and spending levels, separate from the debt limit. But over the past few decades, lawmakers — particularly Republicans — have seized on the debt limit as a tool to try to get additional concessions on spending. The Biden administration has tried to end those tactics by refusing to negotiate.

[Steve]

With all due respect to Dr Tribe's quote mining, reading the rest of Lincoln's speech from which the quote comes from paints a different picture of what Lincoln is arguing:

Now it is insisted that Congress, and not the Executive, is vested with this power; but the Constitution itself is silent as to which or who is to exercise the power; and as the provision was plainly made for a dangerous emergency, it can not be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion

Lincoln is clearly arguing that the plain text of the Constitution empowers him to suspend the writ of habeas corpus during an insurrection where the public safety may require it in the absence of any legislation passed by Congress; not that he could disregard laws.

[David Lockmiller]

I think that the basic argument is that the House of Representatives initiate and approve spending laws. The Senate votes its approval and then the President signs the law expressing his approval of the legislation. Then, if the spending approved by Congress and the President exceeds the debt limit set by Congress, then Congress must increase the debt limit or the nation will default on the national debt with consequences.

The Congress thus has two choices at this point: Increase the debt limit or increase net revenue by some combination of increased taxation and decreased spending. The Republican majority in the House of Representatives say "No" to increased taxation of the obscenely wealthy.

The following is a post that I made on April 24 on a thread I titled "RE: Lincoln's Argument for the constitutionality of Wealth Taxes."

New York Times, The Morning by David Leonhardt, April 24, 2023

The standard measure of a nation’s economic performance is per capita gross domestic product — the value of the economy’s output divided by the size of the population. Today, the U.S. still accounts for almost 25 percent of global output, nearly the same share as in 1990, even as China’s share has soared.

G.D.P. does not measure a typical person’s standard of living. Per capita G.D.P. is an average, and an average can be distorted by outliers. The U.S. is highly unequal, which means that the wealthy take home a larger share of output than in other countries.

Since 2000, per capita G.D.P. in the U.S. has risen 27 percent, but median household income has risen only 7 percent. Income for the top 0.1 percent of earners has jumped 41 percent.

[David Lockmiller]

OPINION | GUEST ESSAY
This Is What Would Happen if Biden Ignores the Debt Ceiling and Calls McCarthy’s Bluff
By Robert Hockett
There might be short-term chaos in the economy and the markets, but we will be better off as a country in the long term.


I did not bother reading this Guest Essay in today's New York Times. But I did laugh out loud and thereby aroused my cat from her slumbers by the heater.

What's the worse that could happen? Let's roll the dice!!!

[Rob Wick]

Steve,

I'm not sure that is a fair reading of Tribe's quote. I don't see him as saying the President can disregard any law, but rather in a narrow situation where the government would collapse without quick action from the executive.

But even for the sake of argument, history is full of Presidents ignoring laws they find inconvenient. A clear example would be the War Powers Act. President after president has done end runs around it in several instances, saying their actions "were consistent with" the act rather than pursuant to it. To be honest, I don't know that a true reading of the act wouldn't find it unconstitutional, but then I'm no Constitutional scholar and I'm sure those who are could tear my argument to shreds.

It seems to me, however, that the Constitution is clear that the debt of the United States cannot be repudiated and that to allow the House to cause the U.S. to default on its obligations is more theater than heart-felt policy differences.

Best
Rob

[RJNorton]

Just a note on the budget:

https://www.pgpf.org/chart-archive/0053_...comparison

[David Lockmiller]

(05-10-2023 10:56 AM)RJNorton Wrote:  Just a note on the budget:

https://www.pgpf.org/chart-archive/0053_...comparison

Note that North Korea is not even on the left hand scale.

Yet, Kim Jong Un is the Supreme Leader of North Korea since 2011 and he can begin a nuclear war that might result in the end of human civilization on this planet.

---

(05-10-2023 10:52 AM)Rob Wick Wrote:  Steve,

I'm not sure that is a fair reading of Tribe's quote. I don't see him as saying the President can disregard any law, but rather in a narrow situation where the government would collapse without quick action from the executive.

But even for the sake of argument, history is full of Presidents ignoring laws they find inconvenient. A clear example would be the War Powers Act. President after president has done end runs around it in several instances, saying their actions "were consistent with" the act rather than pursuant to it. To be honest, I don't know that a true reading of the act wouldn't find it unconstitutional, but then I'm no Constitutional scholar and I'm sure those who are could tear my argument to shreds.

It seems to me, however, that the Constitution is clear that the debt of the United States cannot be repudiated and that to allow the House to cause the U.S. to default on its obligations is more theater than heart-felt policy differences.

Best
Rob

Good post, Rob.