The "Dark Donald" Scenario Underscores the President's Lack of Prioritization Authority
by Neil H. Buchanan and Michael C. Dorf
Since we began writing about the debt ceiling back in 2011, we have occasionally been met with an objection to our contention that borrowing in excess of the debt ceiling is less unconstitutional than failing to spend appropriated funds. Precedents like Train v. City of New York and Clinton v. City of New York, the objection goes, indicate that--absent a valid congressional delegation to the President of the power to spend less than some fixed amount--the President must spend all of an appropriation, but that such obligation is contingent on there being money in the government's bank account to spend. If authorized borrowing plus tax revenues amount to some number less than the expenditures Congress has required, the objection continues, then the President is not under an obligation to spend the full amount. Thus, according to this line of pushback, there is no trilemma when the debt ceiling becomes binding: the President simply spends as much money as the government has on hand; under these circumstances, the failure to spend the full amount authorized doesn't usurp Congress's spending power.
That is, to be blunt, weird -- or at least naive. It ignores the irreducible complications of budgetary tradeoffs, the setting of next-best policy priorities, and more generally the hard work of hammering out compromises in the course of writing complicated legislation. Those hard-fought agreements are reached with both sides of a deal believing that those elements of the legislation about which they care the most will not fall by the wayside, which would happen all but randomly when (if the objection above is taken seriously) the President stops paying those bills which by sheer bad luck came due on a day when the Treasury's shelves were bare. If that is not an assault on Congress's spending power, it would be difficult to know what is. There are many, many moving parts. Throwing some of them away, whether actively or passively, changes what Congress legislated.
More to the immediate point, as we've noted elsewhere, there's nothing in Train or Clinton that suggests that the cases are limited to circumstances when the government is flush with cash, but we acknowledge that the distinction is one a court could draw if there were good reason to draw it. In today's essay, we shall explain why there isn't good reason. Or to be more precise, we will intensify an explanation we have already given.
In a Verdict column a couple of weeks ago, we marveled that Republicans are playing a peculiar version of hardball in which they are, in effect, telling President Biden that if he doesn't give them nearly everything they want in a negotiated debt ceiling deal, they will expect him to exercise an enormous amount of policy discretion by deciding which government bills to prioritize and which to delay or leave unpaid. That's peculiar, we explained, because mild-mannered Joe Biden could then transform into Dark Brandon and wield the awesome unilateral power in ways that would be very painful to Republicans.
We are not the only ones to have written about this possibility. Yesterday, nine days after the publication of our essay expounding the Dark Brandon scenario, a Washington Post columnist
stole it without crediting us independently came up with the very same idea, including the invocation of Dark Brandon. However, that columnist considered the implications of the Dark Brandon scenario only with respect to the relative strength of the parties' bargaining positions. He did not take the next logical step of asking whether the Constitution assigns this awesome power to the President.
The Dark Brandon risk is that a President with unfettered discretion to withhold payment on any or all parts of the federal budget with the possible exception of payments to bondholders as they become due (per a narrow reading of Section 4 of the 14th Amendment) would abuse that power by substituting his policy priorities for those of Congress or abuse it still further by punishing his political enemies and rewarding his friends. That risk, we argued in our Dark Brandon column, underscores that the principles of Train and Clinton apply even if the debt ceiling becomes binding. Indeed, the binding debt ceiling circumstance would give the President much greater latitude over a much wider swath of the budget than President Nixon tried to exercise in Train or that Congress tried to give President Clinton in the Line Item Veto Act. Thus, there is reason to think that the principle--that it violates separation of powers for a President to exercise unguided discretion over fiscal policy--has extra force if the debt ceiling becomes binding, not, as our critics claim, that it has less force.
Now we want to add yet another illustration of the proposition. We will call it the Dark Donald scenario.
To date, debt ceiling crises have occurred when Republicans controlled one or both chambers of Congress during a Democratic presidency. That might seem like the only configuration in which a stalemate can occur. After all, while Democrats occasionally cast symbolic votes against raising the debt ceiling in the pre-2011 period (with even then-Senator Barack Obama doing so in 2006, although that vote in no way threatened economic calamity), there have never been substantial numbers of Democrats who favored the scorched earth policy that Republicans have gleefully abused for eight of the last twelve years.
Something was different from 2017 through 2021, but the particulars escape us. Oh, wait, now we remember! Republicans are shameless hypocrites. Because everyone assumes that a President and his party will be blamed for the severe economic downturn that follows a debt-ceiling crisis that goes past the X date, when Donald Trump was President, congressional Republicans voted to raise the debt ceiling without a fuss. Thus, it appears that debt ceiling crises occur only when there is a Democratic President and Republican control of one or both houses of Congress.
But that doesn't necessarily have to continue to be true. Suppose that we get through the current crisis with a last-minute deal that, as has been rumored, resets the debt ceiling to become binding again in December 2024--during the lame-duck session, when retiring members of Congress would be willing to supply the votes to raise it yet again. Suppose also that Donald Trump is elected to or steals the Presidency next year (gulp!). Despite some grumbling, Democrats would probably join Republicans to raise the debt ceiling again. Then, beginning in January 2025, the Republican Congress (that would be brought in on Trump's coattails) would again raise the debt ceiling, probably at least twice. It is not implausible to suppose that it would be set to become binding again in another lame duck period, in December 2028.
And that's where things get weird. Unless Trump successfully attempts to suspend the Constitution, if he takes the Presidency after next year's election, the 22nd Amendment would bar him from running again thereafter. Thus, in December 2028, he would be a lame duck. Meanwhile, given historical trends, it is reasonable to think that in the 2026 midterms Democrats would have re-taken at least one chamber of Congress. So, to finish setting the table, in December 2028, we would have at least one house of Congress controlled by Democrats negotiating against a lame-duck Trump. Let's assume that the incoming President in 2029 is a Democrat. Under these circumstances, it is entirely possible to imagine that Congress would want to raise the debt ceiling, while President Trump would not. He would make all sorts of outlandish demands as the price of raising the debt ceiling, including deep cuts to spending programs that Republicans dislike. And he wouldn't worry that he, as President, would be blamed for the economic downturn; he would relish the thought that the incoming Democratic President would inherit a hobbled economy. Note also that these cuts would not necessarily be reversible as soon as the new President took the oath of office, because the likelihood is that at least one house of Congress would still be in Republican hands. Trump could thus inflict real, long-lasting pain on the American people.
Indeed, the two of us talked about presidential opportunism in the debt ceiling context in 2014 (probably earlier, in fact), as a result of which one of us (Buchanan) wrote a Dorf on Law column explaining how a President might try to turn the tables on the other party. Imagine that Obama had said something like this:
Republicans claim that they will not give me what I supposedly want, i.e., a debt ceiling increase, unless I give them what they want. Well, I don't want a debt ceiling increase any more (or less) than they should want it. So, if they want me to sign a debt ceiling increase, here are my demands: (1) a national $15 minimum wage, indexed to inflation, (2) an increase in the estate tax, to return it to 2001 levels, (3) the repeal of all abortion restrictions nationwide, (4) updates to the National Labor Relations Act that will effectively increase union membership, (5) my immediate confirmation as Chief Justice of the United States Supreme Court , (6) ..."
That column then added that "[i]f Republicans say, 'We won't pass a debt ceiling increase unless you do
X,' Obama can say, 'No, I won't sign a debt ceiling increase unless you
do Y.' An emboldened Obama might be just the guy to kill the strange
idea that debt ceilings are politically useful vehicles to extract
concessions from the President."
Even if a President could not successfully turn the tables with non-budgetary demands, the logical result of prioritization is to give budget-slashing authority to a President who engineered a debt ceiling impasse by insisting on concessions that the other party would find horrific. In other words, it would reward a President with the very authority he was unable to obtain via negotiations with Congress.
It's bad enough that Dark Brandon would have unfettered fiscal discretion after trying in good faith to reach a deal with Congress to prevent the debt ceiling from becoming binding. But the Dark Donald scenario drives home the lesson that the awesome fiscal power that a President would have via prioritization can be a result of a kind of self-dealing. Indeed, reflecting on the prospect of Dark Donald shows why even Dark Brandon--indeed, even Dark Brandon's mild-mannered alter-ego, Uncle Joe Biden--is not a mere incidental beneficiary of the debt ceiling becoming binding. Under Article I, Sec. 7--which, given the balance of power between the parties, sets an impossibly high bar for Congress to override a President's veto--the President is necessarily a key party in any budgetary negotiations. Allowing him to exercise vast discretion over the budget when those negotiations fail thus circumvents the Constitution's lawmaking procedures.
Put simply, the critics are not just wrong but have it backwards. A debt-ceiling crisis does not nullify the principles of Train and Clinton. It renders them especially important.