My suggested [permanent] resolution to the debt ceiling issue

Allow me to preface this post with the note that I am not a constitutional scholar. Although I have a J.D. and practiced law, long ago, for eight years, in constitutional matters I am not much more expert than an informed layperson. I also am a student of politics; in fact my undergraduate major was political science. I invite bona fide constitutional scholars to poke holes in my suggestions here. Having said that, here are the steps I would foresee:

1. Monday morning Secretary of the Treasury Jack Lew delivers a public statement that the debt limit will be reached on a given day later that week. He further announces that in order to avoid violating the law, i.e. 31 U.S.C. § 3101, the department will not pay any obligations of the United States after that time.

2. The Secretary identifies and publicizes that the payments that will not be made include outstanding bonds and appropriated monies, including payments to contractors, entitlement benefits, and salaries of government employees.

3. A small group of bond holders and public benefit recipients files suit against the United States in the District Court for the District of Columbia. The plaintiffs seek a declaration that the limit on the public debt on its face violates section 4 of the 14th Amendment. The plaintiffs seek preliminary and permanent injunctions against enforcement of the debt limit and a writ of mandamus directing the secretary to pay the appropriated funds.

Of course, at this point the issue is subject to the judgment of the courts, ultimately the U.S. Supreme Court. Here’s one optimistic way it could play out:

The district court issues a preliminary injunction, since the plaintiffs seem likely to prevail. The writ is issued. The President and the Secretary of the Treasury are complying with a court order to make the payments, and are therefore not committing any impeachable offenses. The House Republicans see the writing on the wall, agree to raise the debt limit, the issue is mooted and the case is dismissed.

A not-so-optimistic outcome: the courts rule against the plaintiffs at any level, despite the arguably plain language of the 14th Amendment. We’re pretty much in the dumper as a country if that were to happen.

The best outcome of all: The House Republicans seek to join the suit as they did in the Defense of Marriage Act case. The courts, including the Supreme Court, hold that the debt limit is unconstitutional. The debt limit is forever gone as a bargaining tool for either party. The Republican Party realizes it overplayed its hand. This last sentence is impossible given the current and likely near-term future makeup of the party. But the country knows it can thank John Boehner and the Tea Party for the end of the debt limit.

Let’s hope there is a light at the end of this tunnel.

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3 Comments on “My suggested [permanent] resolution to the debt ceiling issue”

  1. Chris Bryant Says:

    As an initial take, I don’t see any obvious impediment to a court reaching the merits, though I think I am more doubtful than the author about the proper resolution of the 14th A. issue. A thoughtful post, sir.

  2. Chris Bryant Says:

    On second thought, there’s a ripeness issue. In that light, a p.i. might be especially premature, and upon political resolution (one can hope) the matter becomes moot.

  3. Ken Hirsh Says:

    I’m imagining that if there is not yet a political resolution, the ripeness issue disappears when the first payments are not made.


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