If Congress refuses to pay its bills, can the President do it for them?

Here we go again, another debt ceiling crisis. Congress passed lots of laws spending more money than it takes in, but they also passed a law saying we can't borrow more than a certain amount. So, as has happened so many times before, we face a potential government shut-down unless Congress votes to raise the debt ceiling, which would allow the government to actually pay what it promised.

This standoff, if unresolved, threatens to confront the president with a no-win scenario that Neil Buchanan and Michael Dorf aptly coined the “Trilemma.” Any action the president might take—be it unilaterally cancelling or reducing programs, increasing taxation, or borrowing more money—stands in direct conflict with a congressional command. Professors Buchanan and Dorf posit that any choice that the president makes will violate the Constitution “because he will have failed to execute at least one duly enacted law of the United States.”

My colleagues, Jessica Berch and Chad DeVeaux, disagree. Because the Supreme Court “refers to Justice Jackson’s familiar tripartite framework from Youngstown” to resolve “claims of presidential power,” they argue that the Court must look to Jackson’s taxonomy to determine the president’s options in the event Congress pushes the economy over the fiscal cliff. Last year, Chad published The Fourth Zone of Presidential Power, 47 Conn. L. Rev. 395 (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2423404)—addressing the 2013 standoff—which argued that the standoffs require the expansion of Jackson’s taxonomy to include a fourth zone of presidential power. In Youngstown, Justice Jackson asserted that “presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” He offered his famous 3-zone template to evaluate the scope of executive power.

In the first zone, “the President acts pursuant to express or implied” congressional authorization. Here, the president’s power “is at is maximum.” In the second zone, “the President acts in absence of either a congressional grant or denial of authority.” In this “zone of twilight” Congress and the president possess authority that is either “concurrent” or “its distribution is uncertain.” Zone 3 involves situations where “the President takes measures incompatible with the express or implied will of Congress.” Here, “his power is at its lowest ebb”—only exercises of plenary Article II powers (e.g., pardons) may be sustained.

Each of the president’s 3 options in the standoffs appears to fall into the third zone. Article I bestows the powers to “tax,” “spend,” and “borrow” exclusively upon Congress. But on closer examination, Chad posited that the standoffs do not fit within any of Jackson’s zones. His 3 zones contemplate coherent legislative action. Congress can sanction presidential action, it may be silent on the subject, or it may prohibit it. Congressional acts in conformity with any of these coherent choices will affect the president’s powers accordingly. But in the standoffs Congress directed the president to take specified action and paradoxically forbade him from taking that very same action. Such contradictory legislative instructions cannot find a home anywhere within Youngstown’s existing taxonomy. As such, Chad argued that the standoffs require expansion of Jackson’s spectrum to accommodate a fourth zone of presidential power.

Here, Chad asserts that Congress actually increased the president’s power. Irreconcilably conflicting legislative commands necessarily invest the executive with a measure of discretion that resembles law making. Congress cannot—in the guise of “legislating”—direct the Executive Branch to complete an impossible task and then claim that it is the president who is delinquent in his constitutional duty to faithfully “execute” the law when the assigned goal goes unfulfilled. By commanding the president to implement particular programs, while explicitly denying him the funds necessary to pay for these endeavors, Congress tacitly afforded the president the discretion to take any of the corrective actions suggested above—(1) cancelling programs, (2) borrowing funds, or (3) raising taxes.

But in the present standoff, Congress has changed the rules of the game. House Republicans have proposed a bill styled the “Default Prevention Act,” which would direct the president to borrow funds in excess of the debt ceiling—but only for the limited purpose of paying principal and interest due to federal Treasury bond holders and social security recipients. The bill would tacitly instruct the president to default on all other federal obligations.

Chad and Jessica have proposed a panel for the upcoming AALS Annual Meeting (along with Mike Abramowicz, Gillian Metzger, former Congressman Brad Miller, and Austen Parrish) addressing the president’s options in the looming standoff. Chad and Jessica are also writing a new article, entitled Once More unto the (Fiscal) Breach, addressing the impact the new bill may have on the scenario. The central question is whether, under Youngstown, a vetoed bill can impact the scope of presidential power. Chad and Jessica will be blogging on PrawfsBlawg about this and other issues in December. Stay tuned.