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Wednesday, May 10, 2023

One Possible Resolution of the Debt Ceiling Dispute

Let's assume that President Biden does invoke Section Four of the Fourteenth Amendment to ignore the debt ceiling. Litigation then ensues. In the meantime, Congress and the President can continue to negotiation. As part of that negotiation, Congress can retroactively authorize any debt issued by the Treasury in excess of the debt ceiling. This action would not concede the President's power to issue debt unilaterally. Congress adopted a similar approach to President Lincoln's unilateral suspension of habeas corpus during the Civil War. The Habeas Corpus Suspension Act of 1863 did not concede Lincoln's authority on that point but also did not reject what he had done.

A settlement along these lines (perhaps after the Supreme Court hears oral argument) would be in the interests of both sides. After all, neither Congress not the President can be confident of victory and neither side wants to lose and set a definitive precedent. 

Posted by Gerard Magliocca on May 10, 2023 at 09:27 AM | Permalink


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