"Everbody freeze! Everbody down on the ground!" So orders an armed but hapless bank robber in the clipped dialect of the Coen brothers' screenplay for the farcical comedy Raising Arizona. His life on the line, a teller seeks clarification: "You want I should freeze or get down on the ground? Mean to say, iffen I freeze, I can't rightly drop. And iffen I drop, I'm a gonna be in motion."
When it comes to the public fisc, Congress has repeatedly played the role of the double-talking robber: "Freeze the national debt! Spend billions more that we don't have!" His political life on the line, President Obama might want to seek clarification so that he can discharge his constitutional duty to "take Care that the Laws be faithfully executed." But as Congress once again threatens to hold the nation's credit rating hostage, as it did last year, by refusing to lift the debt ceiling, the president need not play the victim. When faced with a dilemma like the teller's, he should take the lead by ignoring the ceiling and heeding only the legislature's last word: spend.
Acts of Congress are not subject to the doctrine that binds courts to past decisions. Policy, unlike precedent, comes and goes. Thus, as the Supreme Court has often noted, when statutes are in "irreconcilable conflict," the later one prevails. To be sure, judges strive to interpret statutes in ways that avoid such discord. But as the court specified in an 1871 decision, when two are "repugnant" to each other, the second one will "operate as a repeal." Most recently, in 2007, the court applied the implied repeal doctrine to bar an antitrust suit against Credit Suisse on the ground that certain antitrust statutes had been trumped by more recent securities laws. The last word controls.
Congress's first word about a debt ceiling was in 1917. Having given the federal treasury discretion to issue bonds to help finance World War I, it established the ceiling to curb excessive spending. Since 1974, however, Congress has given the president explicit instructions about how much money to spend and on what. In this era, as many have pointed out, a debt ceiling is an anachronism. Why bother setting a spending limit if every purchase must be pre-approved?
Historically, measures to raise the ceiling have met little resistance. After all, raises have seemed necessary to allow the government to borrow money to implement spending bills that have already passed Congress and been signed into law. Last fall, however, brought an impasse and, as a result, a downgrading of the nation's credit. This year, the federal government again appears headed toward a showdown -- and a potential shutdown -- stemming from both the legislature's failure to live within its self-imposed means and the chief executive's unwillingness to impose a pragmatic solution.
One solution that has been suggested by various observers, including former President Bill Clinton, is that if Congress refuses to raise the debt ceiling to match the spending it authorizes, President Obama should raze the ceiling once and for all by invoking a provision of the Fourteenth Amendment: "The validity of the public debt of the United States, authorized by law, . . . shall not be questioned."
Eliminating the debt ceiling is a good idea. The Fourteenth Amendment, though, is not quite up to the task. Ratified in 1868, it put to rest the notion that the government might not be legally obligated to pay debt it incurred during the Civil War. The validity of the public debt was a controversial issue after the Revolutionary War as well, and one purpose of the Constitution was to protect creditors and thus gain trust for the new nation. Today, the government's debt is unquestionably valid, and invoking the Fourteenth Amendment would simply confirm that legal status. The question at hand is the more practical one of whether the government will actually be able pay the debt in full.
President Obama should answer yes to that question by explaining that, in the language of the Supreme Court, spending is repugnant to freezing. When Congress gives explicit, unqualified instructions to spend money -- money that it knows the government does not have and therefore must borrow -- its earlier exhortations to limit debt must fall silent. If not, spending bills would effectively legislate the demise of the government's creditworthiness. An implied repeal of the ceiling is the more reasonable statutory interpretation.
Just as people impose limits on themselves but later choose to ignore them, so may legislatures, without existential or constitutional or financial crises. Congress may have bound itself Ulysses-like to a mast to avoid temptation by the spending sirens, but it still holds the (purse) strings and can untie itself. It is free to follow instead the lead of Lewis Carroll's Alice, who gave herself "very good advice" but "seldom followed it."
Our movie bank robber eventually understands that not all injunctions bind forever. After first reacting to the teller's query as fecklessly as Congress responded to the 2011 debt crisis -- the befuddled robber simply tells the teller to shut up -- he then allows his more level-headed partner to explain: "Y'all can just forget that part about freezin'." In this year's sequel to the Raising the Debt Ceiling farce, Congress is unlikely to emulate that sensible resolution, but on his own, the President should just forget that part about freezing the debt. He should instead instruct the treasury to borrow the money necessary to implement the legislature's later directive to spend. Suits seeking to stop executive action face various threshold barriers, such as the political question doctrine and the standing requirement, and so the judicial branch is unlikely to intervene. In the debt ceiling debate, it can thus be the president who has the last word.
How will Donald Trump’s first 100 days impact YOU? Subscribe, choose the community that you most identify with or want to learn more about and we’ll send you the news that matters most once a week throughout Trump’s first 100 days in office. Learn more