But the remedy to the president being forced to act unlawfully is for the president to act unconstitutionally? That makes no sense at all.
Which option is the unconstitutional one to which you refer? Paying the obligations or not paying them?
What about the 14th Amendment?
The proposal to have the President seize the Article I power of Congress to borrow money on the nation’s credit. That’s a no-kidding textual power of Congress; right there in black and white.
And what’s the unlawful choice that you’re contrasting it with? The president prioritizing payments based on the available funding? Overdrawing the government’s accounts at the Fed? Or some other option not previously discussed?
Step 1: Authorize spending
Step 2: Forbid spending
Step 3: Impeachment!
Is it constitutional for the president to ignore Congress’s direction to spend money in a particular manner?
Right. But there’s also some question about whether the government can choose to not pay its debt obligations and pensions under the Fourteenth Amendment. That turns of relatively subtle argument about whether intentional refusal to pay is the same as “questioning the validity.” I would suggest that in the historical context of that clause, the answer is not obvious.
So it is not as if one course or the other is free of constitutional concern.
I don’t think anyone’s talking about the “intentional” refusal to pay, as if the President is sitting on a pile of money in the Treasury and just doesn’t want to use that money to pay interest.
I’m talking about the inability to pay the debt. As in, the Treasury is empty and the United States can’t make payments on anything (debt or contractual obligations). I’ve never seen an argument for the “14th Amendment remedy” or whatever that’s called that specifically addresses the Article I, Section 8 powers of Congress. I would love to see such a discussion, because there’s 150 years of precedent following the ratification of the 14th Amendment that shows that issuance of debt has remained a congressional power for all that time, right through the present.
ETA: for my 2 cents, that section was intended to prevent Congress from passing a law nullifying the debt, not having the President unilaterally taking Article I, Section 8 powers.
I don’t think there’s a clear line between intentional refusal to pay and Congress refusing to economically empower the President to pay. The purpose of this provision in the 14th Amendment was precisely to prevent a Southern Congress from forcing the President to repudiate debts. And what you describe as the “14th Amendment remedy” is not what I’m talking about. Whether or not the 14th Amendment empowers the President to act–and I don’t think it does for the same reasons you point out–he may violate the 14th Amendment by defaulting on our debt obligations.
This all does seem awfully familiar to me. Is it something we need to do at least once a generation, just to demonstrate what government does?
(Newt’s error wasn’t default, but shut down the government ‘for real’, which is the underlying question of the OP.
Not really. An Executive Order might be useful, but only if the Pres in question thought it might be upheld by the Supreme Court.
Otherwise, it’s pretty straightforward: spending originates in the House, goes to the Senate, then the President either signs it into law or vetoes it.
The President is not the king. He does not rule by decree.
Of course there is. Let’s say Congress appropriates a ton of money to build some foolish project. If the President announces that he opposes the project and will not spend the money on principle, that’s impoundment and it violates the law. If the Executive Branch is willing to spend the money, but it cannot find a contractor who will carry out the project, that is not impoundment and no law has been broken. Intent is of great importance in this case.
I will add that it would not be the President defaulting on the debt, it would be the United States Government – including the Congress – which would bear responsibility for default. In my view, if a default were to occur under these circumstances, it would be a grave injustice if the President alone were held to account for that, because the power of the purse in virtually all respects primarily rests with Congress. So, in this man’s eyes, Congress would be ultimately culpable for default, not the President.
I meant that the difference I identified does not matter to whether the failure to pay debt obligations violates the Fourteenth Amendment, Section 4.
Oh, definitely. But there’s an important difference for the purpose of our discussion. Whereas the President is conceivably left with no option but to violate the Constitution, Congress of course always has the option of raising the debt limit. So the President is the proper actor to analyze when asking what one is supposed to do when there is no course available that is constitutional.
That cannot be so. In this matter, the President can only play the cards that Congress deals him. If Congress deals him a 2-7 while China has pocket queens, it does not suddenly become the President’s prerogative to grab the cards, rifle through them, and select the hand he wants.
The President cannot be the proper actor to evaluate on how a power that he does not Constitutionally hold shall be exercised. There is zero textual basis for the 14th Amendment eliminating the Article I, Section 8 power to control the debt, or handing that power to the President: that’s a case that Obama has called “not a winning argument.” There is no constitutional basis to argue that the President is ultimately responsible for every constitutional obligation, no matter how much he may violate every constitutional principle in the process.
The governing document of our country isn’t a hapless Vietnamese village which has to be burned to the ground in order to save it.
Oh, now I understand your point. Congress is the one violating the Fourteenth Amendment by effectively repudiating debts (assuming that argument about interpretation of the Fourteenth Amendment is correct). Since Obama is not the one violating the Constitution, he cannot claim any obligation to act as a result of that.
What if Congress passed a law requiring the President to display the Mona Lisa in the White House. The President asks France to lend him the painting so he can comply with the law, France declines.
So the Congress has a passed a law that he does not physically have the capacity to comply with.
The argument of those saying the President could respond to the failure to raise the debt ceiling (which is distinct from the looming shutdown due to not passing a CR btw, the debt ceiling is projected to be hit sometime mid month) would be akin to saying the President would thus be empowered to unilaterally declare war and invade France with no declaration of war or appropriations approval for the venture or etc in order to seize the Mona Lisa.
The Constitution does not give Congress any authority over the laws of arithmetic. They do have authority over the debt of the United States, and they have exercised that authority by passing a budget containing more spending than revenue. The debt is now authorized. Congress cannot (note, not “may not”, but “cannot”) require spending, prohibit revenue, and prohibit debt, all at once.
I don’t think that analogy is quite on point. It would be as if Congress passed a law requiring the President to display the Mona Lisa in the White House, but Congress also passed a law that said no Da Vinci without our permission which permission they will not give, *and *the Constitution requires the President to display at least one Renaissance painter’s work at all times and this is the only one available.
In other words, I think there are a few other dimensions of legal obligations you’ve left out in structuring the real dilemma. (Though I agree with the upshot.)
Yes, they can. It’s a stupid idea, but they can. Congress passes contradictory laws much more frequently than you realize, which is why there’s a whole Wikipedia page on the topic, it’s just that this is a particularly striking example.
Congress passed one law saying taxes are “x.” Congress passed another law saying that spending is “y.” Congress passed a third law saying borrowing is “z.” You have presented no rational basis at all to presume that “z” isn’t a valid law, but “x” and “y” must be adhered to. Why can’t “x” and “z” be held constant, and “y” be subject to the President’s whims? Why can’t the President unilaterally declare “x” to be whatever he wants it to be? Hint: because it’s blatantly unconstitutional.