Section 3101 of United States Code Title 31 establishes the public debt limit (often called the debt ceiling). Originally created by the Second Liberty Bond Act, Pub. L. No. 65-43, 40 Stat. 288, the public debt limit sets a cap on the amount of debt the federal government can guarantee. Section 3101(b) sets out the statutory limit and the procedure for raising it:
"The face amount of obligations issued under this chapter and the face amount of obligations whose principal and interest are guaranteed by the United States Government (except guaranteed obligations held by the Secretary of the Treasury) may not be more than $14,294,000,000,000, outstanding at one time, subject to changes periodically made in that amount as provided by law through the congressional budget process described in Rule XLIX 1 of the Rules of the House of Representatives or as provided by section 3101A or otherwise."
(For a useful discussion of the public debt limit, see Buchanan & Dorf, How To Choose The Least Unconstitutional Option: Lessons For The President (And Others) From The Debt Ceiling Standoff, 112 Columbia Law Review 1175 (2012).)
Since 1917, Congress has raised the debt ceiling 78 times, including three times — without preconditions — during the Trump administration as that administration in four years added $7.2 trillion to the public debt, which rose from $14.4 trillion to $21.6 trillion.
With a public-debt default looming, proposed solutions range from a presidential declaration that the debt ceiling violates the 14th Amendment's requirement that "The validity of the public debt of the United States . . . shall not be questioned" to minting a trillion-dollar coin and depositing it in the U.S. Treasury.
In a recent New York Times guest essay, Harvard Law Professor Emeritus Laurence H. Tribe addressed the 14th Amendment solution, writing in part: "The right question is whether Congress — after passing the spending bills that created these debts in the first place — can invoke an arbitrary dollar limit to force the president and his administration to do its bidding."
Ideally, the President and Congress won't precipitate a constitutional crisis. And courts, when acting properly, try to avoid deciding a constitutional question whenever possible.
Perhaps a way of avoiding the 14th Amendment solution exists, if only as a complementary argument that would provide an off-ramp: implied repeal of the public debt limit statute.
Over the decades since 1917, Congress again and again passed spending bills that repeatedly and inevitably created debts the legislators knew would necessarily exceed then-existing statutory debt-ceiling limitations. These spending bills, because of their obviously inevitable collision with the debt-ceiling statute, and the repeated upping of the debt limit to avoid that collision, could be seen as a repeal — implied rather than explicit — of the debt-ceiling statute.
In Wisconsin, the Wisconsin Attorney General recently made a similar implied-repeal argument in seeking a judgment declaring Wisconsin's 1849 abortion statute unenforceable: he contends that an array of abortion-related statutory changes over the years amounted to repeal of the original statute.
"The second argument that we are making is that the law was impliedly repealed. What that means is usually, when a law is taken off the books, it's repealed," said [Wisconsin Attorney General Josh] Kaul. "There's a law that very clearly says this law is no longer in effect, and now there's a new law in effect. But there are also cases where the legislature, by its actions, can be viewed as repealing a law."
Implied or implicit repeal could serve as a way to avoid the impending constitutional clash and simultaneously to shift the onus onto Congress — where it belongs — for its decades of deliberate legislation that, since 1939, clearly conflicts with its own previous debt-ceiling legislation. Congress could have complied with its own debt-limit statute and avoided potentially calling into question the validity of the public debt simply by passing spending bills that did not add to the guaranteed public debt. But Congress repeatedly chose not to do so and, in that way, demonstrated that it rejected the statutory public debt limit itself -- in effect, impliedly repealing it.