{"id":936,"date":"2011-08-04T09:46:32","date_gmt":"2011-08-04T13:46:32","guid":{"rendered":"http:\/\/www3.law.harvard.edu\/journals\/hlpr\/?p=936"},"modified":"2015-10-02T15:28:48","modified_gmt":"2015-10-02T15:28:48","slug":"now-that-the-debt-ceiling-has-been-raised-can-we-get-around-to-abolishing-the-debt-ceiling","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2011\/08\/04\/now-that-the-debt-ceiling-has-been-raised-can-we-get-around-to-abolishing-the-debt-ceiling\/","title":{"rendered":"Now that the debt ceiling has been raised, can we get around to abolishing the debt ceiling?"},"content":{"rendered":"

Anthony Kammer\u00a0<\/span><\/em><\/p>\n

On August 2 of this week, the United States successfully\u2014if you can call it that\u2014raised its debt ceiling for the\u00a010th time<\/a>\u00a0since 2000. Regardless of the merits or un-merits of the deal that was eventually reached, the negotiation process was overwhelmingly bad for the country\u2019s fledgling economic recovery. America\u2019s reputation globally has suffered as a result. China\u2019s state run paper called the negotiations \u201cdangerously irresponsible<\/a>,\u201d and many commentators thought the US was coming perilously close to a\u00a0constitutional crisis<\/a>.<\/p>\n

The country may be suffering from a bit of debt ceiling fatigue at the moment, but given the harm that the past few weeks have done, the United States needs to get around to abolishing the debt ceiling before this situation repeats. It would be a good signal to markets and remove political uncertainty that\u2019s likely to keep US interests rates up, and it\u2019s important for the continued stability and civility of our political system.<\/p>\n

<\/p>\n

In case you need persuading that the debt ceiling should be abolished, I recommend\u00a0this article by James Surowiecki at the New Yorker<\/a>\u00a0or\u00a0Annie Lowrey\u2019s piece in Slate<\/a>\u00a0from back in May, where she referred to the debt ceiling a \u201chistoric relic\u201d with a \u201chorrific downside and negligible upside.\u201d And on August 1, Bruce Bartlett, a former policy advisor to Presidents George H.W. Bush and Ronald Reagan, laid out a\u00a0persuasive argument for the debt ceiling\u2019s abolition<\/a>,\u00a0explaining that:<\/p>\n

\u201cEven if the Treasury avoids default on government debt this week, we will inevitably have to go through the same political drama the next time the debt limit runs out and every time thereafter. And sooner or later the shoe will be on the other foot, as Democrats hold the debt limit hostage against a Republican president.\u201d<\/p>\n

\u201cUnfortunately, the option of just letting the debt limit expire is not available. It is permanent law and can be abolished only by repeal or by a ruling by the\u00a0Supreme Court\u00a0that it is unconstitutional.\u201d<\/p>\n

Given the fight that was just waged over raising the debt ceiling, I am rather skeptical that the Republican-controlled House is prepared to repeal the debt ceiling at the moment. Neither party, it seems to me, has the proper incentives to give up this political bludgeon willingly.\u00a0As Michael Shear stated<\/a>, \u201cit may be impossible for Washington to put the debt ceiling genie back in the bottle.\u201d\u00a0Whether the debt ceiling statute is unconstitutional is another matter.<\/p>\n

Bruce Bartlett has also written an excellent summary of the constitutional issue and has\u00a0compiled some of the best arguments for and against the executive branch\u2019s invoking the 14th Amendment<\/a>\u00a0to avoid hitting the ceiling.\u00a0While most of these arguments focus on whether the President was empowered by the 14th Amendment to authorize the Treasury Secretary to continue issuing debt, the relevant question is whether the legislation establishing the debt ceiling is itself constitutional. Niel Buchanan at Dorf on Law has addressed exactly this issue and argued that\u00a0the debt-limit statute is unconstitutional<\/a>\u00a0because it separates Congressional spending from the authorization to raise money to pay for those obligations.<\/p>\n

Alternatively, it might be possible to argue that Congressional action that calls into question the United States\u2019 debt might itself be unconstitutional. As Jack Balkin has\u00a0written<\/a>:<\/p>\n

\u201cSecretary Geithner does not believe that the President is allowed to violate the Constitution himself to stop congressional Republicans,\u00a0but it does not follow that what the Republicans are doing is constitutional<\/em>.<\/p>\n

The press so far has been asking whether the\u00a0debt ceiling<\/em>\u00a0is constitutional.\u00a0The correct question they should ask is whether\u00a0the Republican strategy of hostage taking<\/em>\u00a0violates the Constitution\u201d (emphasis in original).<\/p>\n

As most legal commentators have recognized, standing and the political question doctrine pose hurdles to the Supreme Court ever ruling on the issue. Given the enormous damage this game of political chicken caused and how perilously close the nation came to an unprecedented constitutional conflict, however, these questions are worth exploring in more depth\u2014and soon.<\/p>\n","protected":false},"excerpt":{"rendered":"

Anthony Kammer\u00a0 On August 2 of this week, the United States successfully\u2014if you can call it that\u2014raised its debt ceiling […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2],"tags":[],"class_list":["post-936","post","type-post","status-publish","format-standard","hentry","category-blog"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZQka-f6","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/936","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=936"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/936\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=936"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/categories?post=936"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/tags?post=936"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}