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Letting Obama Force a Constitutional Crisis Is the Best Republican Choice

It's worth considering the risks and rewards in the budget standoff, which is first and foremost a battle for control of the Republican Party and the shape of the 2014 and 2016 primaries. The Republican Party of John McCain and Mitt Romney lost two presidential elections, the second to a weak candidate in a weak economy. Left to its own devices, it will lose the next presidential election and all the following ones. By picking a fight on Obama's least popular position, namely health care, the conservative wing of the party galvanized the party base and forced the House leadership into a fight. In a June 27 poll, the Gallup organization found that just 22% of Americans expected Obamacare to improve their family's health situation, while 47% expected it to make it worse. As my old partner Jude Wanniski used to say, the electorate is like a diamond, waiting to be cut at exactly the right spot. Ted Cruz pointed the chisel correctly.

Opposing a bad program, to be sure, is not the same as building a national majority around a good program. The Republican Party is a long way from that. Just as the conservative wing of the party needed its chance after the Nixon and Ford debacles of the 1970s, the conservative wing of the party needs to take its shot after the abysmal performance of the McCain wing -- or there will be no party at all.

It well may be true that shutting down the government hurts the Republicans in the short run. That is immaterial; there is no way to get from here to there except by making a stand against Obamacare. There is no downside, for the Republican Party as presently configured already is a guaranteed loser. A reinvigorated conservative leadership has a chance of leading the party to victory.

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.