No Constitutional Options

By Mike Dorf

Let's say you and your friend agree that you will meet at a local movie theater to see the "8 o'clock showing of Harry Potter and the Deathly Hallows, Part 2."  You further agree that you will buy the tickets at 7:30 and your friend will arrive at 7:50.  You arrive at the theater at 7:30 and notice that the 8 pm showing of HPDH.2 is sold out but that there are still tickets available for the 9 pm show.  You also notice that the Tree of Life is playing at 8 pm.  You have accidentally left your wallet and cellphone with your friend, and have exactly $22 in cash with you, just enough to buy tickets for the two of you for one or the other film.  The clerk in the booth tells you that he only has a few tickets left for each film.  You and your friend have similar taste in movies, so you expect that she would prefer to see HPDH.2 to Tree of Life, other things being equal, and you also know that she would rather see either film than just wander around the largely empty mall, but: 1) You don't know whether your friend has seen Tree of Life already; and 2) You don't know whether the 9 pm showing of HPDH.2 would be too late for your friend to make it back home in time to relieve her babysitter.

How should you go about deciding whether to buy tickets for HPDH.2, Tree of Life, or neither?  You and your friend hadn't previously discussed the matter, so you have no way of reliably determining what your friend's choice actually is under these changed circumstances.  The best you can do is to make a decision that you think your friend would make if presented with the current options.  That decision in turn will largely reflect what you think is the all-things-considered best thing to do.  You know you cannot satisfy your friend's first choice--the 8 pm showing of HPDH.2--and you don't know what the second choice is.

The stakes in this example are pretty low.  At worst, you and your friend end up seeing a movie she already saw or you cannot see any movie this particular night.  You'll both get over it.  But the example more or less mirrors the situation that President Obama will face in a couple of weeks if Congress does not raise the debt ceiling.  He will not be able to simultaneously comply with all of the taxing, spending, and borrowing laws, and Congress has not specified a backup.  Under these circumstances, what should the President do?

One possibility is that the President is free to choose to comply with whichever statutes he likes.  In their recent exchange on this blog, both Professors Tribe and Buchanan think that is off the table.  They agree that the President cannot simply raise taxes, for example.  I think I agree with this conclusion but it's worth noting what drives it: Some notion that the President lacks the authority to raise taxes (unless delegated that authority by Congress, which hasn't occurred here).  But I don't think this answer is quite so obvious--at least if one accepts a further assumption, which I need to elaborate.

Professors Tribe and Buchanan disagree about whether failure to pay, e.g., Social Security or Medicare obligations, would violate Section 4 of the 14th Amendment.  Tribe says no; Buchanan says yes.  Suppose Buchanan is right.  Tribe then says the President would still be obliged to prioritize spending before engaging in unauthorized borrowing--and, Tribe says, borrowing beyond the debt ceiling would be unauthorized because the debt ceiling, read in combination with laws authorizing borrowing, only authorizes Executive borrowing up to that ceiling. (One of my very astute readers made that point as a comment on several of Buchanan's posts.)  Let's assume that's right too.

So now the President's menu of options looks very interesting.   There's no way he can comply with all three laws: 1) Taxing to raise revenue X; 2) Borrowing to raise Y; 3) Spending in the amount of Z > X+Y.  (I'm assuming that other means of raising revenue, such as selling Alaska back to Russia, or invading Saudi Arabia and selling its oil to China, have been rejected as preposterous.)  So:

1) Taxing beyond X would amount to an unconstitutional assumption of the power of Congress to tax;
2) Borrowing in excess of Y would amount to an unconstitutional assumption of the power of Congress to borrow;
3) Spending substantially less than Z would violate Section 4 of the Fourteenth Amendment.

Under these circumstances, I read both Professors Tribe and Buchanan to be saying that number 1) is somehow worse than 2) or 3), while I read Professor Tribe to also be saying that number 2)  would be worse than number 3), while Professor Buchanan is saying that number 3) is worse than number 2).  I'm less interested in the specifics of their agreement and disagreement than in the shared assumption that runs through all of this--namely, that where a President's only choices are all unconstitutional, some of these choices are more unconstitutional than others.

That strikes me as probably right, but it's worth noting that there's nothing in the text of the Constitution itself that states this principle.  Moreover, I am not aware of any well-developed case law, historical practice, or scholarly literature addressing the question of which constitutional violations are worse than others.  Maybe the generation of careful thinking about this question will be a beneficial side-effect of our government driving the economy over the cliff.