It doesn’t really differ.
I was speaking of what the law requires. The solution praised in the article you link amounts to a plan to simply ignore the law.
It used to be considered that if Congress authorized spending money it was also implicitly authorized collecting enough money to spend for that authorization. This was changed when Gingrich was Speaker of the House and he explictly said that spending and revenue collecting where two seperate actions that each required separate Congressional authorization.
But Gingrich obviously didn’t rewrite the Constitution to reflect this view. The proposal being made is that the Obama administration take the position that the earlier policy of implict authorization was in accordance with the Constitution and the Gingrich law is therefore unconstitutional.
How many times do I have to correct this? The ability to raise the debt limit through the budget resolution is not relevant because the budget resolution does not make law for spending or taxation purposes. Never has, never will. It takes appropriations acts and tax acts to change those fiscal policies.
The budget resolution is a non-binding blueprint used by Congress for subsequent budget discussions. It does not, and cannot, obligate the government to any spending.
It doesn’t work because, as you note, the United States can’t be sued. So yeah, the U.S. can essentially say “The debt is valid, but we aren’t going to pay” and not be in violation of the constitution. Functionally the same as a default, but different from cancelling the debt.
Not sure I follow what you are saying.
Say Congress decided to take out a mortgage on a house and had to pay $1500/month.
At some point they say they will not raise the debt limit so won’t be paying that bill.
Seems to me Congress did authorize that debt and the President would be within the terms of the constitution to tell the Treasury to keep paying that debt.
I can understand not gaining any new debt (so no buying a car and adding to your debt burden till the debt limit is raised). How is paying an existing debt not already legally authorized though?
Maybe I’m misunderstanding but I thought the issue was funding past appropriations that have already been made.
I wonder if this would give the president a de facto line-item veto.
For debt already incurred I think the president is probably safe invoking the constitution and continuing to pay that debt.
But what about new spending? Congress may have directed him to, say, buy 100 new battle tanks. Yet congress has left him with a debt limit he cannot go past. The new tanks would be new debt. In theory Obama could say, in order to stay under the imposed debt limit, he cannot buy the tanks as directed.
So, either Obama ignores the debt limit here too and buys the tanks (which makes the debt limit law essentially meaningless) or he abides by the debt limit and he decides, on his own, what to spend money on and what gets tossed to stay under the debt limit imposed by congress. This leaves the debt limit law intact but now hands sole purchasing decisions to the president which also seems to fly in the face of the constitution.
Legal eagles will have to tell us how courts typically react when someone is put in a position where abiding by the law is literally impossible. If they do X they violate law Y, if they do Y they violate law X. One way or another something has to give.
Not just for past debt, but for any pension. It seems that social security and medicare are certainly pensions and they shall not be questioned and Congress has no authority not to pay them.
Isn’t it just as illegal to issue an executive order to prematurely end the payroll tax holiday, or to prematurely end the Bush tax cuts (the should-already-have-ended-if-we-held-to-the-original-law Bush tax cuts)?
That’s what I’d do. But I think if you’re President, & you’re not provoking a constitutional crisis in the face of legis-weasels who are trying to destroy you, you aren’t trying hard enough.
This is the part that intrigues me.
Let’s say August 2nd comes and the debt limit isn’t raised. OK, no more debt issued. But we still have enough revenue to pay interest on existing debt (as seems to be Constitutionally required) and pay some other day-to-day expenditures.
Who gets to decide who gets paid? The executive? Can Obama say “we’re going to pay Social Security, Medicare, and nothing else”? Can he pick which federal employees stick around and which don’t? That seems squarely outside of his powers, yet pretty much required.
I apologize for expressing frustration at explaining this budget issue, when really I should be doing a better job of explaining the budget process and why it is important.
Eah February, the president submits a budget proposal to Congress. It explains all the fiscal policies that the president supports. It does not bind the government to do anything.
In the spring, Congress usually passes a budget resolution. It explains the fiscal policies that the Congress supports. It is not law, it just sets priorities: how much discretionary spending should there be? How much is Social Security going to cost this year? Should tax policies be changed? The budget resolution then instructs various committees to come up with bills that reflect those priorities.
In the past, there has been a rule in the House that allows a debt limit increase to be added to the budget resolution. The part of the budget resolution that dealt with the debt limit would be automatically generated into a new bill and sent to the White House for signature. Nothing else in the budget resolution would go to the President, because the budget resolution is only a blueprint of priorities, it isn’t intended to obligate the government to spend money or change tax policies.
After the budget resolution is passed, appropriations bills are drafted and enacted. These bills spend money, but have literally nothing to do with where the money comes from. Sometimes tax bills or changes to entitlements are drafted and enacted, but that really doesn’t happen too often.
You see, it is quite rare for Congress to pass laws that deal with both spending and revenue, whether it is debt or taxes. Mandatory spending doesn’t have to be approved every year. Taxes don’t have to be approved every year. Appropriations do have to be approved every year, but they are completely silent on the issue of where the money comes from.
Part of the reason that spending laws are not the same as revenue laws is the Constitution itself: spending is an Art I, Sec 9 power. Borrowing money is an Art I, Sec 8 power. Spending and revenue are logically linked, of course, but the governmental power to raise funds is separate and distinct from the ability to spend funds. There is nothing whatsoever in the Constitution that implies that the powers are the same (that the power to spend implies an obligation to raise funds). That’s why some people have proposed balanced budget amendments, to insure that the government is compelled to address the issue of revenue each time an issue of spending is proposed.
This is an arcane issue to be sure, but suffice it to say that Congress makes most of it’s spending decisions without a single word in those laws that could vaguely imply that funds must be raised to support those expenditures. To create that obligation (that debt must be issued to support spending) is to merge two separate and distinct Congressional powers into one, when the Constitution itself deals with each of those powers in different sections, and also would make out of whole cloth an obligation to issue debt that absolutely appears nowhere in spending laws.
BTW: I’m not aware if any debt limit increase directly attributable to the Gephardt Rule. My understanding is that the Senate never allowed for indirect votes on issuing debt, so to my knowledge, the passage of a budget resolution never automatically sent a debt limit increase bill to the President.
Let me repeat that: the existence of the Gephardt Rule in the House is of minimal consequence because the Senate never had such a rule to link debt limit increases to the vote on the non-binding budget resolution.
My Social Security perhaps should be considered a pension, but I didn’t earn it fighting in the Civil War.
This is true.
It is quite simple.
Congress has passed many laws requiring spending.
Congress has passed many laws to raise revenue.
Congress has passed a law limiting how much we can borrow.
Since spending under current laws and revenue under current laws requires borrowing more than the limit, congress must either change some of their laws or allow the government to default.
Since violating the constitution will only be a minor consequence to default, I am sure at the last minute the different factions in congress will manage to get some laws passed and signed by the president.
Completely agree with your last points. It is the responsibility of Congress to straighten these contradictions out, because Congress created the conflicts with the specific enumerated powers the Constitution gives to it.
And if Congress fails to act? (I suspect they will but imagine they don’t.)
Seems to me the 14th Amendment requires the government to make good on its debts. That would have to be the Executive in this case and the Executive would need to do whatever needs doing (issuing more debt if necessary) to cover payments on existing debt.
Seems the constitution is explicit about this.
I don’t see where the president is authorized act if by failing to act, congress violates the constitution. He can jaw them, one of his main powers. He can have the attorney general file suit.
He is authorized by the Constitution.
Well, maybe not him specifically but the constitution explicitly says the US will pay its debt. If Congress fails to act in a manner to see that our debts are paid seems to me it defaults to the President to do so. Makes sense since the Treasury is part of the Executive branch. So, it would be Obama’s job (or whoever is president).
If not him then who? Who is responsible to see the US Constitution is adhered to?
Perhaps Obama could take it to the Supreme Court and the Supreme Court could order it (which would basically be ordering the President to do it).
The Supreme Court. They are not authorized to make law, cut spending, raise revenue or set the debt ceiling. They can throw out laws that on their own violate the constitution, but I doubt one that only does so in connection with other laws.
So in your view the SCOTUS would have to toss the debt limit law?
Is there any caselaw to support that proposition?