Washington Merry-Go-Round

IMMEDIATE RELEASE 10 May 2023
WASHINGTON MERRY-GO-ROUND
Today’s Events in Historical Perspective
America’s Longest-Running Column Founded 1932
A brilliant solution
By Douglas Cohn and Eleanor Clift         
 
          WASHINGTON — Renowned Harvard law professor Laurence Tribe has posited a brilliant solution to the debt ceiling conundrum, but, being a lawyer, he writes as a lawyer. So, we paraphrase:
          When Congress passes a bill and the president signs it into law, the president is constitutionally bound to execute it. Period.
          However, in 1917, the first debt ceiling law was passed. It was unconstitutional because it unintentionally provided the president with the illegal power to pick and choose which spending bills to fund.
          So here is how it works. Congress – as is currently the case – proclaims it will not raise the debt ceiling unless the president agrees to new laws that reduce spending on certain programs. If the president does not go along, the country will not be left with enough spending authority to fund the spending laws already on the books, and the president will be compelled to pick and choose. It is a constitutional right the president does not have.
          Here is the conundrum. The president can:
(A)  Ignore the Constitution, and pick and choose which spending laws to enforce;
(B)   Cave into Congress and sign new reduced spending bills into law;
(C)   State that the Constitution does not grant discretionary authority for the president to pick and choose.
          Clearly, choice (C) is the only absolute. The president is obligated under Article II of the Constitution “to take care that the laws be faithfully executed.” This means all spending laws must be funded, first from revenue and then from debt.
          But what about faithfully executing a debt ceiling law? The president can only do so by illegally overriding and altering the various spending laws, or default on the national debt which the 14th Amendment forbids.
          In short, by refusing to raise the debt limit Congress is granting the president unprecedented unconstitutional powers. This is the essence of Tribe’s argument. By failing to raise the debt limit or by failing to acknowledge the unconstitutionality of the debt limit law, Congress would be undermining its own constitutional rights and obligations to pass spending bill legislation, rendering the president with the arbitrary authority to decide which spending legislation and in which amounts will be funded.
          The solution is obvious: do away with unconstitutional debt limit legislation and focus on constitutionally mandated spending legislation because the Constitution grants Congress, not the president, the power of the purse. Congress may exercise this power with individual spending legislation, omnibus all-inclusive spending legislation, or – unrealistically – the granting of a fixed sum for the president to disburse at discretion.
          What Congress cannot constitutionally do is pass spending legislation with one hand and deny the funding of it with the other hand, which is what debt limit legislation does. When Congress does do this by refusing to raise the debt ceiling, it is irrationally and unconstitutionally undermining its own authority. It is – to its own detriment – rewriting the Constitution without the authority to do so.
 
          See Eleanor Clift’s latest book Selecting a President, and Douglas Cohn’s latest books The President’s First Year: The Only School for Presidents Is the Presidency and World War 4: Nine Scenarios (endorsed by seven flag officers).
          Twitter:  @douglas_cohn
          © 2023 U.S. News Syndicate, Inc.
          Distributed by U.S. News Syndicate, Inc.
END WASHINGTON MERRY-GO-ROUND