Declare the debt ceiling incompatible with spending laws

 https://www.washingtonpost.com/us-policy/2023/01/29/debt-limit-unilateral/

Declare the debt ceiling incompatible with spending laws

 

A less flashy plan — one viewed by at least some administration officials as more feasible than the coin — is for the Biden administration to simply declare that it has no choice but to break the debt limit because abiding by it would mean violating spending laws Congress has also enacted.

The reason is simple: Congress passes, and the president signs, legally binding appropriation laws specifying what the executive branch is required to spend. There would be no way, the administration could argue, to stop borrowing money without breaking the spending laws.

“There is very clearly a conflict between the debt ceiling on the one hand and the law that is the federal budget itself on the other hand,” said Bob Hockett, a former Federal Reserve official and congressional economic policy adviser who teaches public finance at Cornell and Georgetown. “People seem to forget that the federal budget is itself a legally effective enactment. Budgets are legal requirements that Congress duly passes, and our legal system has a wealth of interpretive principles for resolving conflicts between various applications of laws, which in this case preempt the debt ceiling.”

Constitutional lawyers refer to this kind of scenario as a “trilemma,” in which all of the president’s potential decisions — including inaction — would potentially pose a constitutional crisis. Michael Dorf, a constitutional law professor at Cornell, has argued in articles with Neil Buchanan, of the University of Florida’s Levin College of Law, that in this event, “the president will have literally no way to comply with all the laws and will have to violate at least one of them.”

“If the president faces one of these crises, he should minimize the violation,” Dorf added in an interview. “And our view is that the way to do so is to exercise the least amount of legislative direction by violating the debt ceiling rather than picking and choosing which bills to pay.”