Is the Debt Ceiling Law the Most Unconstitutional Statute?

by Michael C. Dorf

Prof. Buchanan and I have long argued that presidential borrowing in violation of the debt ceiling should Congress fail to raise it would be the "least unconstitutional option" (LUO). We illustrate with some homey examples in our new op-ed in the Los Angeles Times. The LA Times essay also indirectly responds to Prof. Michael McConnell's high-profile non sequitur in the NY Times, in which he argued that the president has no independent authority to borrow money on the credit of the United States because that power belongs to Congress. Well, duh. The question, though, is what happens when the president's only options all involve usurpation of a power of Congress. (There are other problems with Prof. McConnell's view as well, as I explained in a Twitter thread over the weekend.) Assuming that none of the proposed workarounds we discussed in our Verdict column on Monday actually works, and that therefore a genuine trilemma arises, our LA Times piece shows why the answer is that issuing debt minimizes the violation.

But wait. There's more. Prof. Buchanan and I also have yet another Verdict column out today. In it, we offer President Biden a tool to use in the ongoing negotiations discussions with Kevin McCarthy and House Republicans. He could channel his alter ego, Dark Brandon, to say that if the debt ceiling isn't raised he'll do what the Republicans seem to want him to do then: "prioritize" certain spending over other spending BUT in a way that rewards Dark Brandon's political friends and punishes his enemies. The very prospect, we say, dramatically illustrates what's wrong with prioritization.

Two new Buchanan/Dorf debt ceiling essays not enough for you, today? Good news! I've got more to say in this very essay, in which I consider yet another way to get around the debt ceiling should the negotiations discussions fail to produce a deal.

Now that Prof Laurence Tribe has pretty much endorsed the Buchanan/Dorf view that presidential borrowing in violation of the debt ceiling would be the LUO, I have begun to wonder whether our view might be too generous to the Republicans trying to use the debt ceiling as leverage. To understand how and why, it will help to consider the origin story of the LUO--in which Prof Tribe played a key catalytic role.

On July 7, 2011, Prof Buchanan wrote a Verdict column on that year's version of the debt-ceiling crisis in which he accepted the proposition that the debt ceiling statute is unconstitutional. That same day, Prof Tribe wrote an op-ed in the NY Times rejecting the constitutional claim and contending that any resolution must come from Congress. Prof Buchanan then wrote another Verdict column and several essays here on Dorf on Law respectfully critiquing Prof Tribe's analysis. Prof Tribe in turn replied in two guest essay on Dorf on Law (here and here). I then attempted to crystallize the state of play in yet another Verdict column.

I had gleaned from the exchange between Profs Buchanan and Tribe that it's a bit too facile to say that the debt ceiling statute itself violates the Fourteenth Amendment. Rather, it's the combination of the spending laws, taxing laws, and the borrowing cap that collectively give rise to a constitutional violation of separation of powers (and less importantly, also the 14th Amendment). Why single out the debt ceiling statute? Couldn't we just as easily say that by spending too much or taxing too little Congress creates a constitutional violation in light of the borrowing cap? Thus was born the question that foreshadowed the title Prof Buchanan would ultimately give to our major scholarly foray on this subject, which was published the following year. My August 1, 2011 column was titled The Debt Ceiling Crisis Reveals a Constitutional Gap: How to Choose Among Unconstitutional Options.

Subject to numerous extensions and tweaks, Prof Buchanan and I have stuck with our LUO view, although, as we explained earlier this week in Verdict column, we also now think that the Biden administration could roll some of the proposed workarounds into an all-of-the-above approach that incorporates LUO. In that column, we also suggest that one of the options (which we label 4(a)) is a declaration that the debt ceiling is flat out unconstitutional. We do not, however, make an affirmative argument for that possibility, mostly because we had thought that our 2011 colloquy with Prof Tribe had undercut it.

Let's revisit that rejection and reconsider whether the debt ceiling statute--and not the debt ceiling in combination with other laws--is simply unconstitutional after all. I think there's a pretty good argument for that proposition. To get there, consider constitutional litigation in a different setting.

A federal statute forbade the "display [of] any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement" in the Supreme Court or on its grounds. A First Amendment challenge to the law made it to the Supreme Court itself, which, in United States v. Grace (1983), upheld the prohibition as applied to the Court building and some of the outside grounds but invalidated it as applied to a man leafletting on the public sidewalk--which was technically considered part of the Supreme Court grounds but also a so-called "traditional public forum" where people have a robust right to free speech. Justices Marshall and Stevens would have ruled more broadly for the leafleter but no Justice disagreed with the conclusion that leafletting on a public sidewalk is protected free speech.

But what is a public sidewalk? It's government property that has been dedicated to a particular purpose. The public forum doctrine treats streets, parks, and sidewalks as "traditional" public fora for speech, where the government may restrict speech only through reasonable and content-neutral time, place, and manner regulations. Once the government designates property as a street, park, or sidewalk, free speech protections kick in. However, government has wide latitude to change the use of government properties. In that sense, the public forum doctrine is conditional.

Accordingly, consider a hypothetical scenario. Suppose a local government acquires a plot of land called Blackacre with the expectation of building a toxic waste disposal site on it. The city council passes "Ordinance A," which states as follows:

A.1.  Blackacre shall be used as a toxic waste disposal site.

A.2. The public shall not be permitted on the grounds of Blackacre.

Ordinance A is plainly constitutional, even as applied to someone who wants to come onto Blackacre to protest. Although Blackacre is government property, it is not a public forum of any sort, so the government may exclude the public, especially as restricting public access to a toxic waste disposal site serves an important interest in health and safety.

Now suppose that a local NIMBY campaign leads the city council to change course. The council passes Ordinance B, which provides:

B.1.  Ordinance A is hereby repealed and Blackacre is now designated as a public park. 

B.2.  No one may display any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement while on Blackacre.

B.2 is clearly unconstitutional as inconsistent with the 1st Amendment. Now that Blackacre is a public park, it's a public forum, and the outright ban on whole categories of speech is not a reasonable time, place, or manner restriction.

Hold on. Couldn't we equally say that the problem is not B.2 but B.1? After all, but for B.1, Blackacre would still be a toxic waste disposal site to which the public would lack access. To be sure, even on government property that is not a public forum, there are limits to the power of government to regulate speech. It may not enforce viewpoint-based restrictions. But B.2 is not viewpoint-based and would thus be permissible if B.1 had not been enacted and Blackacre were still designated as a toxic waste disposal site.

Readers can see where this is going. I've designed this hypothetical example to mirror the debt ceiling scenario. In the hypothetical public forum case, as in the debt ceiling case, the unconstitutionality arises out of the combination of laws or more precisely in the public forum case, the combination of different provisions of the same law. And if we can't say that the debt ceiling--rather than various of the spending laws and tax laws--accounts for the unconstitutionality because it's only their combination that does so, then likewise we can't say that B.2 creates the free speech violation because it's the combination of B.1 and B.2 that gives rise to unconstitutionality.

And yet that's plainly ridiculous. Of course B.2 is the unconstitutional provision. How do we know? It's just obvious. If the local chapter of the ACLU were to challenge B.2, no judge in their right mind would rule that plaintiff wins but that the result is the invalidation of B.1 and order the city to turn Blackacre into a toxic waste disposal site.

My hypothetical example is probably pretty routine. Individual legal provisions rarely operate in isolation. Rather, they integrate with other provisions. Sometimes their constitutional flaws depend on how they interact with those other provisions. And yet courts adjudicating constitutional claims rarely if ever explain why they are choosing to attend to the foregrounded legal provision rather than the background ones that combine with it to produce the allegedly unconstitutional state of affairs.

In the debt ceiling scenario, it's plausible to point to spending laws and tax laws as playing a more substantial role in creating the unconstitutionality than B.1 plays in my hypothetical. Especially when Congress approves large expenditures after having set the debt ceiling limit, it's hard to deny that the expenditures played a causal role in creating the impossibility of simultaneous presidential compliance with all of the tax laws, spending laws, and the debt ceiling.

Even so, there is a seemingly well-established practice of courts looking for what the statutory provision that is, as it were, the proximate cause of the unconstitutionality. What makes one provision rather than another with which it combines the proximate cause? Because this process takes place implicitly, there's not an established set of criteria, but it's not difficult to identify the relevant ones. A court deciding which provision or provisions to excise would try to minimize the disruption of the statutory scheme (as in severability analysis) and also minimize the judicial rewriting of the Code.

In the debt-ceiling scenario, those factors clearly point towards invalidating the debt ceiling provision, rather than any combination of spending provisions or limits on taxation. Why? Because for a court to close the fiscal gap by increasing taxes or slashing spending would require a drastic rewriting of federal statutes and usurp legislative authority on matters that are thoroughly political. By contrast, invalidating the debt ceiling cures the constitutional violation in one fell swoop.

One of the most egregious errors in Prof Michael McConnell's recent NY Times op-ed is this assertion: "The debt limit is nothing more than an authorization from Congress to borrow . . . up to a certain limit. The debt ceiling is not a restriction on what would otherwise be the president’s ability to borrow; it is an authorization." That's false. Prof McConnell is confusing the origin of the debt ceiling with its current form. Before the early 20th century, Congress would pass separate borrowing authorizations for particular statutory expenditures when they weren't fully funded by other revenue. The debt ceiling came about as part of an effort to avoid the need for these separate measures and was indeed part and parcel of the authorization for the executive branch to borrow. But that's not how it works today. Now the debt ceiling is codified in 31 U.S.C. § 3101. Authorization for the executive branch to borrow is codified separately, chiefly in 31 U.S.C. §§ 3102 - 3106. Thus, a court could declare the debt ceiling (§ 3101) invalid and cleanly sever it from the borrowing authorization.

And if a court can do it, so can the president on his own initiative. As a general matter, we expect the president to follow the law but not if it's unconstitutional. Thus, the Obama administration enforced but didn't defend in court the Defense of Marriage Act based on its mere doubts about the law's constitutionality. (Those doubts were vindicated by SCOTUS in United States v. Windsor.) If Congress fails to raise the debt ceiling before June 1 (or thereabouts), the administration will not have mere doubts about constitutionality. If it then refuses to pay people and entities to which money is legally owed, it will certainly violate separation of powers (and probably the 14th Amendment § 4 as well).

In our prior work, Prof Buchanan and I have argued (over and over) that borrowing in excess of the debt ceiling would also be unconstitutional but less so and thus the least unconstitutional option. But for the same reason that it would be a usurpation of legislative authority for a court to rewrite the taxing or spending laws, it would be a usurpation for the president to do it. Thus, it's again obvious that the debt ceiling statute--rather than some combination of that statute and the taxing and spending laws--is the proximate cause of the constitutional violation. Accordingly, the president should conclude that he need not, indeed cannot, obey the debt ceiling statute, which, under the circumstances, is a nullity. That leaves him with the borrowing authority conferred in other statutory provisions.