Legal contradictions
Posted by aogMonday, 18 July 2011 at 11:06 TrackBack Ping URL

While I don’t agree with the justifications provided by the Obama Administration on why it can ignore the debt ceiling, I do think that it is something the Executive branch of the government can do in the current circumstances.

Essentially the Executive is faced with having to choose to obey one of two laws — the debt ceiling,, or the budget. These are mutually contradictory and I don’t see why the former is automatically superior to the second. The federal budget is also law and directs the Executive to perform specific actions using specific amounts of federal money. If the Executive does not do that that’s (to me) seems just as illegal as ignoring the debt ceiling. My view is that if Congress sets up such a situation, then it’s an Executive privilege and duty to pick one or the other and tell Congress to get its laws straightened out.

Comments — Formatting by Textile
Bret Monday, 18 July 2011 at 12:25

Unfortunately, extra-legal borrowing will NOT be backed by the full faith and credit of the United States and may never be paid back so it’s not clear there will be lenders lining up.

Annoying Old Guy Monday, 18 July 2011 at 14:18

Why wouldn’t it be so backed? Congress passed legislation which the President signed in to law that instructs the Executive to spend that money.

Bret Monday, 18 July 2011 at 15:06

There’s been a lot about this at volokh conspiracy and I’m not sure I’m following it very well, but it goes something like this. Section 4 of the 14th Amendment, known as the public debt clause, states that “the validity of the public debt of the United States, authorized by law … shall not be questioned.” Anything above the debt ceiling is not authorized by law (especially since there are many ways to fund government spending) and thus can be questioned.

Annoying Old Guy Monday, 18 July 2011 at 18:13

Hmmm. That’s a good point.

I’ve seen people claiming that borrowing past the debt limit is “un-Constitutional” or flagrantly illegal. I hate to argue the side of the Obama Administration but it just doesn’t seem that clear cut to me, that the “ignore the debt ceiling” side has some strong arguments as well.

Bret Monday, 18 July 2011 at 18:55

I’m also surprised there hasn’t been more discussion about what happens when Congress gives a President a set of contradictory legislation to execute that can’t all possibly be executed with out violating something. It seems that logically, the President’s task would be to use discretion to do the best he could with the circumstances, whatever that means.

Bret Tuesday, 19 July 2011 at 18:03

Here’s a slick, legal, and totally insane way for Obama to ignore the debt ceiling.

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