No, the President Cannot Unilaterally Raise the Debt Ceiling

P er the plain terms of the U.S. Constitution, Congress is in charge of raising the debt ceiling and passing the federal budget. It cannot, under any circumstances, be cut out of that role by the president.

There, that wasn’t too hard, was it?

One of the salutary things about the American political system is that its structure is explicitly written down. In the United States, unlike in Britain, there is no need for the citizenry to appeal to amorphous traditions or spend days divining the supposed customs of “time immemorial” or examine the reams of unwritten regulations with an unbroken Jesuitical fervor. The rules are right there on the page. Section 1, Article I of the Constitution insists that “all legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Section 8 explains that “the Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States” and “to borrow Money on the credit of the United States.” This language is not complicated, and nobody who can read English believes otherwise. It means what it unequivocally says: that the power to tax, spend, borrow, and pay debts lies with Congress, not with the president.

The 14th Amendment is just as clear as Article I. Section 4 of that instrument holds that “the validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” Nowhere within the amendment is there any implication whatsoever that responsibility for the public debt of the United States will hitherto be acquired by the president. Nowhere is it even hinted that the term “authorized by law” exists outside of the rules established in Article I. Nowhere is there a repeal, an amendment, or an attenuation of the injunction that “all legislative Powers herein granted shall be vested in a Congress of the United States.”

Which is why, until this week, nobody prominent within the executive branch had suggested the amendment gave the president the power to unilaterally raise the debt ceiling. In 2011, the general counsel of the Treasury Department wrote that he considered “the debt limit as a binding legal constraint that can only be raised by Congress.” Why? Because, as it has been since its inception, the debt limit is a binding legal constraint that can only be raised by Congress. And how could it be otherwise? At no point in American history has the process of managing the country’s debts been handled outside of the legislature. During the 49 years that passed between the passage of the 14th Amendment and the establishment of the modern debt-limit system in 1917, Congress explicitly approved each and every issuance of bonds. During the 106 years that have passed between 1917 and today, Congress voted on every single bill that raised the debt ceiling. At no stage in either era — not once — did anybody with political authority contend that Congress’s participation in such matters was optional. The idea is a lie, a fabrication, a fable. It is a cynical political contrivance, peddled by weak and corrupt men who lack respect for the Constitution, for their audiences, and for themselves.

The power to legislate inevitably carries with it the power to say No. There is no “If Congress Won’t Act” clause in the U.S. Constitution. There is no “Too Important” provision that can be invoked when the president and the media believe that the legislature is being unreasonable. The system is the system is the system, and its temporary custodians are required to stay within its bounds at all times. This means that, when Congress does not do something, that something does not happen. This rule applies when that something is Barack Obama’s preferred immigration reform, when that something is the funding of Donald Trump’s wall, when that something is Joe Biden’s coveted policies on evictions or vaccine-mandates or student-loan transference, and, yes, when that something is raising the debt limit to avoid a fiscal calamity. The Constitution is not a suggestion; it is binding law. If the Congress in which it vests power is not able to say No when the president considers a No to be inconvenient, then Congress is not a branch of government, but a subordinate advisory body whose authority is contingent upon its willingness to acquiesce to the King.

Congress is no such thing. Indeed, far from being subordinate, Congress is preeminent within our constitutional scheme. Congress can remove the president; the president cannot remove Congress. Congress can pass laws without the president; the president cannot pass laws without Congress. Congress can staff itself without the president; the president cannot staff his office without Congress. If Congress wishes to raise the debt limit, it can. If it wishes to refuse to raise the debt limit, it can. If it wishes to combine raising the debt limit with other fiscal reforms that it considers necessary, it can do that as well. And, whatever it decides, the president must respect its decision. Under his own constitutional powers, laid out in Article II, the president may sign off on Congress’s decisions or he may veto Congress’s decisions. Those are his only two options. For better or for worse, the president is a minor player in this realm. If he cannot accept that, then Congress ought to remove him in favor of a chief executive who will.