Choosing Among Constitutional Crises: Martial Law or the Debt Ceiling
Paul Krugman's daily substack post this morning ended with this: "If you’re a Democrat who wants to ignore the ongoing assault on democracy so we can talk about Medicaid — important as it is — you’re hiding your head in the sand. This is the moment. Everything is on the line, right now." That post landed in my inbox only moments after I had groaned my way through an op-ed in today's New York Times: "Elizabeth Warren: Trump Is Right About This One Thing." And that one thing is: "Abolish the debt limit."
Obviously, the Warren op-ed was in the works for awhile, so the near-perfect coincidence of timing is nothing more than that. Even so, it is not as though the debt ceiling should have been anyone's priority five, seven, or ten days ago. At best, Warren might have been trying to get The Times to run her piece for a long time, and the opportunity happened to arise just when the debt ceiling might be the least consequential issue that anyone could imagine talking about. The editors at The Times are always inscrutable, so I refuse even to try to imagine what they thought they were doing by choosing now to publish that distraction.
As nearly everyone with even passing familiarity with Dorf on Law surely knows, the debt ceiling is a matter of particularly intense interest for Professor Dorf and me. We have been writing about it, speaking about it in various media and guest lectures, and having nightmares about it for the past fourteen years. Shortly after the 2024 election, I wrote this:
Professor Dorf and I have found one silver lining in the current political cataclysm, and that is that we will almost surely never again have reason to write about the debt ceiling, the "trilemma," or any of the other substantive arguments underlying our conclusion that the President would be not only permitted but constitutionally required to borrow money sufficient to prevent a default, even if the debt limit were binding. [T]here is no longer any reason to explain yet again how we got to our conclusion.
Needless to say, we were unpleasantly surprised when that prediction soon turned out to be quite wrong, when a sudden tiff during the presidential transition saw Trump trying to get the debt ceiling off the table before he even entered office. He failed to bully people into doing that, but the debt ceiling was ultimately adjusted once again (although it is still on the books).
Senator Warren's op-ed is quite good on its own terms, but it is written for a different time. She is correct that the debt ceiling does nothing useful (even for people who think that deficits are horrific, which I emphatically do not), and it has always been true that the debt ceiling's existence creates opportunities for bad-faith Republicans to continue to threaten to destroy the economy unless they get their way. There is a reason that I have had to write the words "hostage takers" again and again and again to describe congressional Republicans.
But being right about the debt ceiling on its own terms is so 2024. Now that we are no longer in a world in which one or both houses of Congress are controlled by Republicans while a Democrat sits in the White House, the question is not how to prevent a constitutional crisis and get back to normal governance but rather what the Democrats in the minority should do if a debt ceiling political showdown were to arise pitting the Trump White House versus the most hardcore Republican fiscal nihilists.
In March of this year, I noted that Senator Warren had been pushing the same point that she made in today's Times piece. There, I wrote that if we again reach the brink of a debt crisis, "the debt ceiling should be repealed." Point to Warren, but the larger issue was whether it would in fact be a good idea for Democrats to help Trump out of a crisis that his own most unhinged congresspeople had manufactured.
In that March column, I made what I thought was a rather obvious argument: Trump should want the debt ceiling to continue to exist and for Republicans to create a debt ceiling crisis, because he could then use the constitutional crisis to seize still more unilateral power over spending. The Buchanan-Dorf conclusion has always been that a President must spend as the appropriations laws require, because the alternative is to allow the President to seize legislative-like powers by deciding which legal obligations to violate. Why would Trump -- whose most aggressive aides have been trying to get him to impound funds -- not love that?
Even so, Trump says that he wants the debt ceiling to go away. Imagine that he knows what he is saying and actually means what he says. (Note that I said "imagine," because obviously.) What could the Democrats do if House Republican hardliners were to force a political confrontation such that the debt ceiling could only be increased or eliminated with Democratic votes? My conclusion three months ago was that "the very best case for Democrats would be to vote to increase the debt ceiling and have Trump not veto the bill, because then they would 'only' look like gutless collaborators rather than feckless dupes as well."
That is no longer true, because a decision by Democrats not to provide any votes to increase the debt ceiling would play out in a situation that is very different than it was even in March. Back then, I wrote that "[if Democrats] refuse to vote to increase the debt ceiling, they can be blamed for giving Trump the opening to intensify his corrupt doling out of federal dollars to favored recipients while punishing his enemies." That once seemed bad. Very bad, even. Now, it is kind of a yawn, relatively speaking.
Trump is in the process of imposing martial law on the country, starting in Los Angeles with a completely fabricated non-crisis and with promises to take it nationwide and leave the US military stationed in cities around the country. That is what Krugman was talking about in his substack today, the title of which was "This is Not a Drill." And although the potential damage from a constitutional crisis revolving around the debt ceiling is probably worse overall than the damage from the Medicaid cuts that Krugman used as his standard of "getting our priorities straight," it is still nothing compared to troops-in-the-streets fascism.
More to the point, no matter whether the debt ceiling is increased (or repealed) in time or not, Trump will do whatever he wants, and Republicans (even those who puff up their chests about the debt ceiling) will never rein him in. If anything, there might be something positive in a debt ceiling-related constitutional showdown, because it might serve as a distraction for Trump and his team, at least partially diverting him from his most sinister unconstitutional plans.
The minority party has no power. If they are put in the position where they actually do have the power to change the outcome, why would they want to say that "Donald Trump is right about one thing"? I continue to believe that Democrats will never be allowed to win another national election, but if they are to have any chance of being relevant, the last thing they can afford to do is to be the party that gave Trump what he wanted. That, in any case, is what we learned from the backlash against Chuck Schumer and his colleagues who prevented a government shutdown earlier this year, a backlash that was as fierce as it was wholly uninformed.
If I could make the debt ceiling go away with the snap of my fingers, would I do so? Until 2025, the answer was always an easy yes. Now, the debt ceiling's continued existence creates the possibility of fratricide among Republicans, and even if we were to hit the debt ceiling, the damage to the constitutional order would be negligible, because Trump would either do what the Constitution requires (obey the appropriations laws and ignore the debt ceiling) or do more of what he is already doing by defying the appropriations laws.
We are at the point in our doom-scrolling where we are all worrying that the next headline will read like this: "Troops in Los Angeles use live ammunition on protesters." Frankly, "Trump and House Republicans cause debt ceiling breach, markets react but quickly recover" gives me a peaceful, easy feeling. Everything is relative.
- Neil H. Buchanan