The Debt Ceiling And The Constitution

On the coming debt ceiling battle, the President says he won’t be held hostage by Congress.  But is there any constitutional way for him to avoid a standoff?

In this Dec. 5, 2012, photo, President Barack Obama pauses as he speaks about the "fiscal cliff" at the Business Roundtable, an association of chief executive officers, in Washington. (AP)

In this Dec. 5, 2012, photo, President Barack Obama pauses as he speaks about the “fiscal cliff” at the Business Roundtable, an association of chief executive officers, in Washington. (AP)

Like it or not, we’re about to have another donnybrook, another battle royal, over the fiscal life of this country. Call it the debt ceiling cliff, or whatever you like. Within weeks, the Treasury Department will be unable to borrow or spend to fulfill American obligations.

Congressional Republicans say that means the power is now theirs, to demand spending cuts. The president says he won’t negotiate or be held hostage. What does the constitution say?

This hour, On Point: before the storm, we’re looking at the law, the constitution and the American debt ceiling.

-Tom Ashbrook


Michael Dorf, professor of law at Cornell University. Co-author, with Neil Buchanan, of the Columbia Law Review article “How to Choose the Least Unconstitutional Option: Lessons for the President (and Others) From the Debt Ceiling Standoff.”

Michael McConnell, professor of law and director of the Constitutional Law Center at Stanford University. Senior fellow at the Hoover Institution.

From Tom’s Reading List

Columbia Law Review  “We argue that the president should choose the “least unconstitutional” course—here, ignoring the debt ceiling. We argue further, though more tentatively, that if the bond markets would render such debt inadequate to close the gap, the president should unilaterally increase taxes rather than cut spending. We then use the debt ceiling impasse to develop general criteria for political actors to choose among unconstitutional options.”

National Journal “As the country nears the fiscal cliff, it’s deja vu all over again. Republicans are now asserting that they will refuse to raise the debt ceiling if they don’t get their way in the negotiations. In response, some Democrats want President Obama to invoke the 14th Amendment and raise the debt ceiling unilaterally.”

NPR “White House spokesman Jay Carney put an end to intense speculation Thursday about whether President Obama would do an end run around Congress with one simple line: ‘This administration does not believe the 14th Amendment gives the president the power to ignore the debt ceiling — period.'”

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