Vermeule e Posner

NYT

Obama Should Raise the Debt Ceiling on His Own
By ERIC A. POSNER and ADRIAN VERMEULE
Published: July 22, 2011






PRESIDENT OBAMA should announce that he will raise the debt ceiling unilaterally if
he cannot reach a deal with Congress. Constitutionally, he would be on solid ground.
Politically, he can’t lose. The public wants a deal. The threat to act unilaterally
will only strengthen his bargaining power if Republicans don’t want to be frozen
out; if they defy him, the public will throw their support to the president. Either
way, Republicans look like the obstructionists and will pay a price.
Where would Mr. Obama get his constitutional authority to raise the debt ceiling?
Our argument is not based on some obscure provision of the 14th amendment, but on
the necessities of state, and on the president’s role as the ultimate guardian of
the constitutional order, charged with taking care that the laws be faithfully
executed.
When Abraham Lincoln suspended habeas corpus during the Civil War, he said that it
was necessary to violate one law, lest all the laws but one fall into ruin. So too
here: the president may need to violate the debt ceiling to prevent a catastrophe —
whether a default on the debt or an enormous reduction in federal spending, which
would throw the country back into recession.
A deadlocked Congress has become incapable of acting consistently; it commits to
entitlements it will not reduce, appropriates funds it does not have, borrows money
it cannot repay and then imposes a debt ceiling it will not raise. One of those
things must give; in reality, that means that the conflicting laws will have to be
reconciled by the only actor who combines the power to act with a willingness to
shoulder responsibility — the president.
Franklin D. Roosevelt saw this problem clearly, and in his first inaugural address
in 1933, addressing his plans to confront the economic crisis, he hinted darkly that
“it is to be hoped that the normal balance of executive and legislative authority
may be wholly equal, wholly adequate to meet the unprecedented task before us.”
“But it may be,” he continued, “that an unprecedented demand and need for undelayed
action may call for temporary departure from that normal balance of public
procedure.” In the event, Congress gave him the authorities he sought, and he did
not follow through on this threat.
The basic problem today is that the president and the House Republicans are locked
in a classic bargaining game. The worst outcome for both is default on the debt, but
each side holds out for a favorable deal. They will certainly go to the wire, but
economists who have studied bargaining games have shown that there is always a real
possibility of breakdown rather than compromise, because only by refusing to deal
can each side convey the seriousness of its position. That is why labor strikes
occur even though workers and managers do jointly better if they make a deal.
Failure to raise the debt ceiling, however, is not akin to any old plant shutdown:
it would be catastrophic.
A proposal has been floated by Senator Mitch McConnell of Kentucky, the Republican
minority leader, under which Congress would delegate to the president the power to
raise the debt ceiling, subject to some minor procedural constraints. Mr.
McConnell’s ploy is suspect, because it assumes away the problem that it attempts to
solve: the internal paralysis of Congress. Congress probably cannot act on its own —
for example, by creating a veto-proof budget — because it is internally deadlocked.
Not only do Democrats and Republicans disagree, but so do the Republican leaders,
who want to avoid a debt default, and the Tea Party-inspired Republican
back-benchers, who appear to believe that only a purifying Götterdämmerung can put
public finances back in order. The latest proposed deal negotiated by House Speaker
John A. Boehner and President Obama is vulnerable to the same problem.
Discussions of an earlier proposal to rely on the 14th Amendment for the President’s
authority to raise the debt level centered on whether the debt issued after the
president’s action would be under a cloud. Commentators pointed out that the
language in the 14th Amendment, which commands that the validity of legally
authorized public debt shall not be questioned, does not explicitly authorize the
president to do anything. But debt under a cloud is better than default. It would be
better if the parties made a deal, but if they don’t, default is the worst outcome.
The 14th Amendment is a red herring, however; even if its debt provision did not
exist, the president would derive authority from his paramount duty to ward off
serious threats to the constitutional and economic system.
Mr. Obama needs to make clear that he will act unilaterally to raise the debt
ceiling if Congress does not cooperate; if he does so, then we predict that Congress
will cooperate by enacting the McConnell plan or a similar fig leaf, and so Mr.
Obama will not need to follow through on his threat, and the constitutional crisis
will pass — just as it did with Roosevelt. Republicans will be publicly outraged,
but privately relieved. They do not want an economic catastrophe; they can avoid
violating their no-taxes pledge; and they retain the power to fight the budget
battle another day. As for the president, he really has no other choice.

Eric A. Posner, a professor of law at the University of Chicago, and Adrian
Vermeule, a professor of law at Harvard, are the authors of “The Executive Unbound:
After the Madisonian Republic.”