Balkin on Bad Questions, the Debt Ceiling, and the Ghost of Harry Truman

Jack Balkin has a thoughtful and extensive follow-up post on the implications of Section 4 of the 14th Amendment for the current debt ceiling debate. While I don’t agree with every jot and tittle, I concur with the broad sweep of the post, particularly his conclusion that the executive would have to exhaust any and all possible ways of meeting the federal government’s debt obligations before even considering the unilateral issuance of new debt. He writes:

The President must use every available legal option to preserve the validity of the public debt, through accounting measures, and through selectively deciding which bills to pay and which to delay paying.

Note that so long as federal receipts exceed debt obligations, this would put off the day of reckoning for quite some time — mooting much of the current debate. In any event, I also agree with Balkin that once all other options were exhausted, a unilateral assertion of Presidential authority to issue debt — even if precipitated by an economic emergency — would be reminiscent of President Truman’s decision to seize steel mills during the Korean War so as to prevent labor strife. (Readers may recall I made the same suggestion here.)

Balkin thinks a President would still take such action in a true emergency, much like Lincoln acted unilaterally to suspend the writ of habeas corpus. But here is the key point about any such emergency action:

Such an act, in my view, is not legal when done, but it may become legal later on, if Congress approves. But it is a dangerous maneuver. If Congress does not approve it after the fact, then the President has acted illegally, and he may be impeached and removed from office.

Such an act may be necessary. It may stave off disaster. But it is no way to run a country.

In short, issuing debt unilaterally is not a step any responsible administration would consider lightly — and it is to the President’s credit that he has yet to suggest otherwise. [Does Brad Delong still want Balkin to be the next General Counsel of the Treasury Department? I suspect not.]

I also agree with Balkin that “as a matter of good public policy,” and perhaps even of constitutional duty, Congress “should tie decisions about the debt ceiling to decisions about appropriations.” This used to be the practice, and the only reason we’re even having this discussion is because the two were severed. Where Balkin and I definitely disagree, however, is how the respective branches should behave now that appropriations and the debt ceiling have been separated. He believes Congressional Republicans who use the threat of default as a bargaining chip are violating their constitutional obligation not to call the public debt into question (much as then-Senator Obama did when he voted against the debt ceiling, I suppose). I think much the same could be said of those who oppose meaningful spending cuts and entitlement reforms, as continuing to live beyond our means (and the tax burden we are willing to shoulder) calls the public debt into question just as much. Indeed, a plausible case can be made that those who are seeking substantial cuts now are, in fact, acting to ensure the nation is capable of meeting its debt obligations into the future.

Perhaps Balkin and I would also agree that it’s long past time to get the nation’s fiscal house in order, rendering debates like this purely academic.

UPDATE: Balkin has a follow-up post exploring the Truman comparison here.