Letting Obama Force a Constitutional Crisis Is the Best Republican Choice
The optimal Republican strategy now is to force a crisis over the debt ceiling. Democrats anticipate this outcome, as the Brookings Institution's Henry Aaron wrote in a widely-cited Sept. 29 op-ed:
If President Obama spends what the law orders him to spend and collects the taxes Congress has authorized him to collect, then he must borrow more than Congress has authorized him to borrow. If the debt ceiling is not raised, he will have to violate one of these constitutional imperatives. Which should he choose?
In 2011, when Congress last flirted with not raising the debt ceiling, lawyers disagreed. Some argued that the president must honor the debt ceiling, thereby violating budget laws. Others held that he must honor budget legislation. No one argued that he should unilaterally raise taxes. Professors Neil H. Buchanan and Michael C. Dorf, who parsed the arguments in the Columbia Law Review in 2012, concluded that all options were bad, but that disregarding the debt ceiling was least bad from a legal standpoint.
I agree. Lawyers tend to play down policy considerations as a basis for interpreting law. In this case, the consequences are so overwhelmingly on one side that they cannot be ignored by the president and should not be ignored by the courts. If the debt ceiling is not increased, the president should disregard it, and honor spending and tax legislation.
That is political overreaching of the worst kind. If Obama refuses to postpone the implementation of his health care plan in return for an extension of the debt ceiling, Republicans should stand their ground, and force the president to tear up the Constitution and assume dictatorial powers. Americans don't like that, and they will dislike it doubly if Obama does so to protect a hated piece of legislation. It would clarify the choices before the electorate and give conservative Republicans something to run against. That isn't enough: they have to present a credible program to restore economic growth and opportunity. But that will be then: this is now.