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Mark this down to the law of unintended consequences. It's possible – perhaps even likely – that Congress has already, inadvertantly, repealed the debt ceiling.

The current debt ceiling was signed into law on February 10, 2010, and that law sets a maximum amount of $14.294 trillion for the US debt. However, since that time, the 111th Congress (the last congress, before the 2010 elections) also passed various appropriation bills for FY2011 which are now in effect. Those appropriations legally authorize the government to spend money.

So we have one law that says to the government: you cannot spend money, and another law that says to the government: you can spend money. Now here's the question: when two laws disagree, which law takes precedence?

And the answer is: the most recently passed legislation is controlling.

And that would be appropriations. In effect, by passing appropriations whose authorized spending exceeds the debt limit, Congress may have already made a de facto repeal of the debt ceiling up to the authorized level of appropriations.

It's been speculated in various places that Obama could get around the debt ceiling by invoking the 14th Amendment, or by other means such as coin sovereignage. But it seems to me that a much simpler answer is at hand. All Obama needs to do is issue an Executive Order for the Treasury to issue more debt in order to meet currently authorized appropriations, under the theory that the authorized spending, being more recently passed, trumps the older debt ceiling law. While Article I of the Constitution specifies that only Congress can borrow money, there is no obvious reason why Obama can't invoke the appropriations bills as a valid Congressional authority to incur debt.

Of course, it would always be possible for Congress to "clarify" the situation, and re-authorize the current debt ceiling. In fact, Congress would never get the votes to pass such legislation, and obviously could never override a certain veto. And, even if they could (and did) re-authorize the debt ceiling after it has already been surpassed, and override a veto, then that law would certainly be unconstitutional under the 14th Amendment.

So by invoking this interpretation of the law, Obama can put Congress in a box of its own making, take the credit for avoiding a financial meltdown, and place the blame for increasing the debt where it really lies: on Congressional appropriations. And he can do so without a Constitutional showdown. It's win-win-win for Obama.

 

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Comment Preferences

  •  Tip Jar (13+ / 0-)

    We are all in the same boat on a stormy sea, and we owe each other a terrible loyalty. -- G.K. Chesterton

    by Keith Pickering on Thu Jul 21, 2011 at 11:43:17 AM PDT

  •  Same End Result as the 14th Amendment Gambit (0+ / 0-)

    First, it would have Obama making an unyielding stand, second, it would send the matter to SCOTUS wouldn't it?

    I don't see that it would be hard for SCOTUS to rule that they don't conflict.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Thu Jul 21, 2011 at 11:46:37 AM PDT

    •  How does it get to court? (1+ / 0-)
      Recommended by:
      DavidCD

      In the first place, who's going to sue? Who's going to lose something if Obama does it this way? Hard to see who's got standing here. I'd love to see what would really happen in the House if the GOP put it up to a vote whether to go to court on this one.

      We are all in the same boat on a stormy sea, and we owe each other a terrible loyalty. -- G.K. Chesterton

      by Keith Pickering on Thu Jul 21, 2011 at 11:54:47 AM PDT

      [ Parent ]

  •  I agree that it's time (0+ / 0-)

    to try such remedies including the one I favor of asking the SC to vacate the 1917 law on the grounds that it violates the 14th amendment and perhaps the commerce clause.

    •  I agree... (0+ / 0-)

      if the teabaggers sue on this issue and the Court finds that they have standing to sue, the Court may address this issue and put the whole mess to rest.  I don't believe that the Court has the jurisdiction to rule on an issue unless the issue is material to a pending case before them.  But good thought, stricking down the 1917 law would be a great place to start.

  •  experts? (0+ / 0-)

    Kick a "job creator" in the balls today!

    by memofromturner on Thu Jul 21, 2011 at 11:47:07 AM PDT

  •  I like it. (1+ / 0-)
    Recommended by:
    phonegery

    Of course, it would be better to have a sane House and not have this crisis, but I admit to being curious about how the President would handle getting to August 3 and being able to announce that the Treasury has exactly this much money, so what will the government do about that.

    It would be a change not to be talking fantasies any more.

  •  No, there is no repeal for two reasons. (4+ / 0-)

    Appropriations acts tell the president to spend. The debt ceiling does not tell him not to spend, it merely prohibits him from borrowing. This is a critical distinction because each appropriations act begins like this,

    "The following sums are appropriated, out of any money in the Treasury not otherwise appropriated."

    The key words are "Out of any money in the Treasury." The appropriations acts only direct the President to spend money that is in the Treasury. They does not direct that money be put in the Treasury. The laws that do that are the laws that impose taxes which are deposited in the Treasury and the laws that authorize borrowing, the proceeds of which are put in the Treasury. The debt ceiling operates as a limit on that borrowing power. Bottom line, if there is no money in the Treasury the appropriations act doesn't appropriate anything.

    There is no conflict. When you hit the debt limit the only money "in the Treasury" is money from tax receipts. And that money is all the money the Treasury can spend.

    Further, affiant sayeth not.

    by Gary Norton on Thu Jul 21, 2011 at 12:34:40 PM PDT

    •  Great comment. (1+ / 0-)
      Recommended by:
      Gary Norton

      Note that the comma in your sig line is incorrect.  At least to my ear.  I've done hundreds of affidavits and never use a comma there.

      It is a calling...to do things about injustice.... It helps to have a goal. I've always tried to have one.--Ted Kennedy, True Compass

      by Timaeus on Thu Jul 21, 2011 at 12:44:34 PM PDT

      [ Parent ]

      •  Thanks. Yes, it does not normally (1+ / 0-)
        Recommended by:
        Timaeus

        have the comma but, unlike you, I've always thought it should. as in "the addition of more to the statement, I will not provide."  You're probably right, but the pause works for me. I appreciate the comment. You're the first to mention it.

        Further, affiant sayeth not.

        by Gary Norton on Thu Jul 21, 2011 at 03:46:01 PM PDT

        [ Parent ]

        •  One has to be kind of a lawyer nerd (1+ / 0-)
          Recommended by:
          Gary Norton

          to comment on something like that--but also to make something like that one's sig line. ;>

          It is a calling...to do things about injustice.... It helps to have a goal. I've always tried to have one.--Ted Kennedy, True Compass

          by Timaeus on Thu Jul 21, 2011 at 06:40:50 PM PDT

          [ Parent ]

    •  how does that affect SS (1+ / 0-)
      Recommended by:
      Gary Norton

      which is, in fact, already appropriated?

      Fishgrease says "GBCW," Senilebiker says "Kudos to Mike for rattling the cage."

      by happymisanthropy on Thu Jul 21, 2011 at 03:21:09 PM PDT

      [ Parent ]

      •  SS is just as appropriated as soldiers salaries (1+ / 0-)
        Recommended by:
        FG

        and payments to contractors. But if there is no money they can't be paid. The President will have to prioritize, but starting 8/2 we will have two dollars of income for every three dollars of bills. Something will not be paid or only partially paid. It's a safe bet that interest will be paid in full.

        Further, affiant sayeth not.

        by Gary Norton on Thu Jul 21, 2011 at 03:49:08 PM PDT

        [ Parent ]

  •  When it comes to our President............ (0+ / 0-)

    it is not a matter of legality or constitutionality: it is simply a matter of WILL.

    The debt ceiling is an artificial gimmick, devised by congress, to appear concerned over a federal deficit, while continually over spending or under taxing.  (See BHO’s vote against raising the limit when he was a Senator.)  

    The country went over a century and a half, mostly with debt, before the first modern “debt limit” bill was passed.  Legally, constitutionally, and historically  it is a joke.

    It is time for Obama (and eventually the Supreme Court) to end the silliness: but I am not holding my breath until he does.

    The mass of men lead lives of quiet desperation--HDT

    by cazcee on Thu Jul 21, 2011 at 12:59:38 PM PDT

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