A possible Republican plan to tie defunding Obamacare to an increase in the federal debt ceiling could provoke a Constitutional crisis, with President Obama deciding to borrow money anyway even if Congress fails to raise the borrowing limit.
Republicans are currently seeking to attach language defunding Obamacare to legislation to continue government funding after the fiscal year ends October 1. If that fails, they are expected to try to incorporate Obamacare defund language into legislation raising the debt ceiling later in the month. If the Senate, as expected, fails to pass such legislation, the debt ceiling will not increase, and the government may default on its obligations.
Writing in the Wall Street Journal, William Galston, a scholar on governance at the Brookings Institution, said President Obama is probably permitted – and even required – to borrow money himself in order to pay off debts coming due and avoid defaulting, whether Congress approves or not.
The precise constitutional issue is the relation between the two terse sentences that define and delimit authority over government borrowing. Article I, section 8, provides (in part) that “The Congress shall have Power . . . To borrow money on the credit of the United States.”
The other key constitutional provision is section 4 of the 14th Amendment, which provides (in part) that “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions . . . shall not be questioned . . . ”
The most plausible reading of the Constitution allows him—in fact requires him—to do what is necessary to avoid defaulting on the public debt, whatever Congress may do or fail to do. But the Constitution does not allow him to treat all existing statutory programs on a par with the public debt—if doing so would require him to issue new debt above and beyond what is needed to pay the principal and interest on existing debt.
Obama appears to agree.
Little noticed in his recent interview with George Stephanopoulos, which ran Sunday on ABC’s This Week, was a suggestion by Obama that Republicans would be violating the Constitution if they put conditions on raising the debt ceiling.
George, here’s the problem. The– the– if we set– if we continue to set a precedent in which a president, any president, a Republican president– a Democratic president– where the opposing party controls the House of Representatives– if– if that president is in a situation in which each time the United States is called upon to pay its bills– the other party can simply sit there and say, “Well, we’re not gonna put– pay the bills unless you give us what our– what we want,” that changes the constitutional structure of this government entirely.
Galston says the issue would have to go to the Supreme Court, but that Obama at least in the interim could borrow money to pay debt. He could also try to fund spending above the debt limit, Galston writes, but this “would be a stretch.”
Though Galston appears to doubt Obama would try to fund spending on his own, the possibility can’t be ruled out. The president has shown a willingness in many areas to push to boundaries of presidential power as far as possible.