Friday, February 8, 2013
Buchanan Presents The Debt Ceiling Should be a Dead Letter in Spending/Tax Negotiations Today at Kentucky
Neil H. Buchanan (George Washington) presents Bargaining in the Shadow of the Debt Ceiling: When Negotiating Over Spending and Tax Laws, the President and Congress Should Consider the Debt Ceiling a Dead Letter (with Michael C. Dorf (Cornell)) at Kentucky today as part of its Faculty Brown Bag Workshop Series hosted by Jennifer Bird-Pollan:
If the debt ceiling is inconsistent with existing spending and taxing laws, what must the President do? In earlier work, we argued that when Congress creates a “trilemma” – making it impossible for the President to spend as much as Congress has ordered, to tax only as much as Congress has ordered, and to borrow no more than Congress has permitted – the Constitution requires the President to choose the least unconstitutional path. In particular, he must honor Congress’s decisions and priorities regarding spending and taxing, and he must issue enough debt to do so. Here, we extend the analysis in two ways. First, we rebut several recently-advanced arguments that purport to dissolve the trilemma. Second, we ask whether our original analysis changes if both Congress and the President, when they pass the annual appropriations measures, knowingly create a trilemma. We conclude that the answer does not change, that is, that spending and taxing laws must still take precedence over the debt ceiling. This means that the debt ceiling is effectively a dead letter, and both Congress and the President should treat it as such.