Previously arcane arguments over the constitutionality of the public debt limit now make headlines.[1] At the same time, debate swirls around whether the President of the United States has the constitutional authority, resting on Section Four of the 14th Amendment, to ignore the debt limit. If the debt ceiling is unconstitutional, does it automatically default to the president to raise more debt, more specifically to direct the Treasury Secretary to issue more debt? Given the way Treasury schedules work, we as a nation must borrow to pay interest on the debt already owed. In consequence, the Constitution, in particular the 14th Amendment’s Public Debt Clause which declares that the validity of U.S. debt shall not be questioned, and related jurisprudence could be read to authorize the President to borrow over the limit to honor obligations already incurred.

A default does not question the validity of the national debt, but it does question something deeper and more meaningful, that the United States of America stands behind its debt. This credibility, this guarantee, a pledge of faith and power would be lost. And at what cost? It may be incalculable. The U.S. must not default.

There are obvious hurdles: one is the pesky power of the purse, and of all the powers Congress has in its possession and has desultorily delegated over the centuries to the ever-evolving executive branch, this is the one near plenary power it holds and, however awkwardly and stubbornly, exercises still. Article I of the U.S. Constitution grants to Congress the power “to borrow money on the credit of the United States.” Throughout our long constitutional journey, the borrowing power remains undiminished by practice or doctrine or interpretation.

As the arguments generally proceed, the president must borrow and flatly contravene Article I to fulfill another constitution obligation. But Article I states only Congress may borrow. Moreover, one could argue that this debt could be invalid. Issuing questionable debt to preserve the validity of preexisting debt and the good name of the U.S. hardly seems a reassuring solution.

We know that the debt limit is an artifact, a bad fiscal rule, problematic both because it severs budget from debt accountability and because it at odds with way Treasury raises money through issuing new debt to finance old debt.[2] This dysfunction places country in a perilous position. And yet silly or stupid laws are not perforce unconstitutional.[3]

Before turning to the Constitution, the question to ask is how perilous a situation is the nation in as date X draws near?

A default would probably plunge the U.S. into a depression not seen in our lifetimes; it likely would also destroy the dollar’s status as a reserve currency and, in so doing, foreclose our way of life as nation.[4] A default is a threat to national supremacy. There appears to be no firm or reassuring constitutional basis for the President to intervene due to the Article I lodestar. What though, at the 11th hour, if indeed the U.S. default could ruin our way of life, shatter the dollar’s status as a reserve currency, plunge the world into a deep depression, might the President do?

The better analogy is to the executive’s emergency powers, inchoate as they may be. The years following September 11, 2001, witnessed a searching scholarly discussion of presidential powers in emergencies, especially in the context of existential threats. Usually, executive emergency powers appear for debate in the context of war and foreign affairs powers and other residual accoutrements of executive power, but there is reason to examine them again given a potential default.[5]

A note of caution, more and more talk about what the president could do vitiates the potential for compromise. If Congress knows the President can do something, they will not reach a solution, and they will further reduce the legislative branch to theater. This will further buttress what has been termed the President’s de facto fiscal dominance. Congress must act because failing to do so is a surrender and tantamount to a violation of oath to uphold the Constitution.

Lincoln and his suspension of habeas corpus and other actions taken in that critical period may be instructive at this moment. Let us recall, after Virginia seceded from the Union, Confederate soldiers were outside the city of Washington. Riots erupting in Baltimore blocked Union troops from reaching the Capital. Baltimore’s railway bridges burned. Washington was cut off from the rest of the Union with few troops. On April 26th,the Commanding General of the Army of the United States, Winfield Scott, the old veteran of the Mexican War, warned that an attack was coming. The next day, Lincoln issued an order suspending the writ of habeas corpus along the military rail lines between Philadelphia and Washington.[6] Previously, Lincoln had been loath to consider suspending the Great Writ, one of the oldest in the common law that had long been a bulwark of personal liberty.[7]

A few pertinent facts, Congress was on a long recess. The order was narrow in place – only along the military line—if not in time. However, Article I, Section 9, Clause 2 prohibits Congress from suspending the Writ except in certain cases.[8] In Ex parte Merryman, Chief Justice Taney concluded that only Congress could suspend the privilege of the writ because clause 2 is in Article I, a strict reading that denied the president any authority regarding the writ or its suspension even under his war powers.[9] In his message to Congress on July 4, 1861, Lincoln gave Taney his celebrated reply: “To state the question more directly, Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated?[10] He then countered the claim that the provision’s placement in Article I addressed the issue at hand:

but the Constitution itself is silent as to which or who is to exercise the power; and as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion.

Attentive to the precise argument made, Lincoln did not claim that his power as commander in chief authorized him to suspend the clause; he claimed that he had to act in response to the imminent danger to the nation when Congress could not assemble. He further added that Congress could, upon convening, modify or countermand his actions by statute.[11]

Lincoln did more in the period before Congress returned in special session. Between April 12, and July 4, 1861, he ordered Treasury to expend funds for the Army and Navy, without an appropriation to do so. Article I, Section 9 states that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” The statutory web that implements the appropriations power and specifies the precise violations of that power, such as obligating funds in excess or in advance of an appropriation did not yet exist.[12] However, the Purpose Statute did, which the additional spending did not explicitly contravene.[13] Lincoln also made hidden and unauthorized expenditures to private individuals to arm the Union, which moves closer to a purpose violation.[14] On August 6, 1861, Congress made all Lincoln’s actions, other than the suspension, legal and valid.[15] In 1863, Congress passed the Habeas Corpus Act, which authorized the president of the United State to suspend the writ for the duration of the Civil War.[16]

Now to the parallels that may or may not be drawn: Congress is not in session for the Memorial Day recess. It was on recess in April of 1861, but the recesses and the travel times were longer. The threat of a grave injury to our well-being and prosperity as a nation and well-nigh American supremacy is there. That this would amount to an existential threat to the nation is open to debate. There are no rebel troops marching on an isolated and impotent Washington. X date is quickly approaching, and with it the opportunity for Congress to go through the laborious process dims.

If, for instance, Congress is out of session or in session and nearing a deal but unlikely to pass the legislation before the X date, the President could, pursuant to his delegated authority, authorize the Secretary of the Treasury to issue more debt, in contravention of the debt ceiling limit.[17] He would state that this stopgap measure is necessary for a specific moment in time in response to the urgent and imminent threat of a default. Such action has only a prayer of success if Congress quickly returns or passes compromise legislation and then authorizes the debt issuance retroactively. This could be a potential course of action if a member of Congress decides to put a hold on the bill or slow its passage for idiosyncratic reasons.

The President need not justify his action solely on inherent executive authority, though the argument would doubtless partake of Jackson’s zones in Youngstown.[18] The President might also argue that he has an implicit authorization to honor commitments incurred. There is no recognized constitutional duty for Congress to fund, though the nature of debt commitments to domestic and foreign creditors may cut in a different direction.[19] It is not clear how the market would respond. This hypothetical order might stretch executive authority, but the order would explicitly recognize the role of Congress and the Courts—and it must be temporary.

And what of the 14th Amendment’s Public Debt Clause, that the validity of public debt shall be unquestioned? The president would be issuing debt of questionable validity, but he would do so on the hope that it would be retroactively authorized, as Congress did for Lincoln’s action. The Supreme Court later then would have the unenviable task of determining that status of the debt issued in that window of time, hours or days until the debt limit is passed. If Congress authorizes retroactively, this smooths the problem.[20] In this situation sketched out, the court will likely hold the president’s action unconstitutional while at the same time it could be the correct decision.

The President would also have to be open about his actions, explain his reasoning to the country and later to the court. It was a fulfillment of his duty and his oath to take on this burden, an unprecedented situation which Congress must remedy. It would be premised on the expectation of inter-branch checks. The salient fact is that this course of action recognizes that Congress has the authority to borrow money and will ratify this temporary measure. Admittedly, ratification can generate risks—foremost among them that Congress would get accustomed to ratifying presidential authorization of public debt issuances in similar stand-offs, which would wreak havoc with the legal status of U.S. debt as well as the debt limit process as it awkwardly stands. On the other hand, the concept of legislative ratification has existed for a long time and has not been abused excessively.

This course of executive action may calm the markets temporarily and protect the U.S. from a sovereign debt crisis for a critical period of time. It is not a panacea, nor does it claim to find a foundation for a specific grant of authority the president can use again and again in contradiction of Art.1, Sec.9. It is a use of emergency power—a necessary default to the executive that he assumes as a trust until Congress can void or ratify actions taken.

This an exploration of a potential least-worst temporary action to buy Congress time. Resorting to temporary emergency powers is always complicated and troubling, especially absent the war powers. Moreover, it is not clear which branch possesses emergency powers in peacetime, and the scope of judicial review attendant upon its exercise by either branch. This elucidation of a presidential path relies more on Lincoln’s particular orders and actions rather than theories based on expansive historical visions of prerogative or broad inherent powers[21]

How to bridle the executive, how to tame it, as Harvey Mansfield put it, in the service of limited, constitutional government has been a long and fraught search.[22] We know that there is a place for executive in republics, not as a remedy for dysfunction but to act in emergencies and therein lies the difficulty.

Alissa Ardito Ashcroft previously served as the assistant general counsel and acting general counsel of the Congressional Budget Office. The views expressed are those of the author and do not represent the federal government or any other entity.

[Editor’s Note: This post was updated on June 12, 2023, to make some technical edits to the sourcing and clarifications regarding how Congress responded to President Lincoln’s actions.]

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[1] 31 U.S.C. §3101.

[2] https://www.treasurydirect.gov/government/historical-debt-outstanding/. See also GAO, Debt Limit, Market Response to Recent Impasse Underscores Need to Consider Alternative Approaches, July 2015.

[3] Although there is an argument that 31 U.S.C. § 3101 gives Congress ex post veto power over authorized spending.

[4] The federal spending to which we as a nation are accustomed is premised on the dollar’s status as a reserve currency. See also https://www.cnbc.com/video/2023/02/16/cbo-director-phillip-swagel-theres-broad-consensus-in-congress-to-tackle-budget-concerns.html; Michael McConnell, The Case for Violating the Debt Limit is Dangerous Nonsense, https://www.nytimes.com/2023/05/14/opinion/debt-limit-constitution.html; Janet Yellen Warns of Debt Ceiling Catastrophe, https://www.bbc.com/news/business-65522169.

[5] Recall articles such as David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—A Constitutional History, 121 HARV. L. REV. 691, 1108 (2008); Amanda Tyler, Suspension as an Emergency Power; Richard Fallon, Interpreting Presidential Powers; Curtis A. Bradley & Trevor W. Morrison, Presidential Power, Historical Practice, and Legal Constraint, 113 COLUM. L. REV. 1097 (2013); Eric Posner & Adrian Vermeule, Terror in the Balance, Security, Liberty, and the Courts (2007). And always, EDWARD CORWIN, THE PRESIDENT: OFFICE AND POWERS 147–57 (4th ed. 1957).

[6] Rehnquist, All The Laws But One: Civil Liberties in Wartime, 25.

[7] The writ gives a person arrested the privilege to request a court issue the writ to order the official custodian to bring the person before the court to justify the detention. It is still used to determine if the state’s detention of a prisoner is valid.

[8] The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. https://constitution.congress.gov/browse/essay/artI-S9-C2-1/ALDE_00001087/.

[9] See Ex parte Merryman, 17 F. Cas. 144, 148 (No. 9487) (1861) (Taney, C.J., in chambers). See generally Seth Barrett Tillman, What Court (if any) Decided Ex parte Merryman?—A Correction for Justice Sotomayor (and others), 13(1) BR. J. AM. LEG. STUDIES (forthcoming 2024) (arguing that Ex parte Merryman is not a decision of the U.S. Supreme Court, of the U.S. Circuit Court for the District of Maryland, or of the U.S. District Court for the District of Maryland).

[10] President Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in 4 THE COLLECTED WORKS OF ABRAHAM LINCOLN 421 (Roy P. Basler ed., 1953).

[11] “Whether there shall be any legislation upon the subject and, if any, what, is submitted entirely to the better judgment of Congress.” Ibid. See also discussion in Barron, 999-1001.

[12] https://www.gao.gov/products/gao-17-797sp. The Anti-Deficiency Act (31 U.S.C. §§ 1341(a), 1342, or 1517(a)) prevents a federal agency from obligations from being made in excess or advance of an appropriation in excess of amount available, before the appropriation is available or from accepting voluntary services, traces its origins to 1870,

[13] The Purpose Statute, 31 U.S.C. § 1301, which dates back to 1809 provides that funds are available only for the purpose for which Congress appropriated them. See Principles of Appropriations Law (GAO Red Book) chapter 3, Availability of Appropriations. See also https://www.gao.gov/legal/appropriations-law/resources.

[14] On April 20, 1861 Lincoln authorized naval commandants to purchase or charter steamships to then arm for public defense. Barron, 1001-2.

[15] 2 See Act of August 6, 1861, § 3, 12 Stat. at 326 which states that all the acts and orders of the President of the United States, “respecting the army and navy of the United States, and calling out or relating to the militia or volunteers from the States, are hereby approved and in all respects legalized and made valid, to the same intent and with the same effect as if they had been issued and done under the previous express authority and direction of the Congress of the United States.”).

[16] Act of Mar. 3, 1863, ch. 81, 12 Stat. 755.

[17] An Act to Establish the Treasury Department, 1 Stat. 65, 66 (Sept. 2, 1789); Second Liberty Bond Act of 1917 and related delegation. The Second Liberty Bond Act of 1917 granted the Secretary of the Treasury to borrow from time to time, on the credit of the United States for the purposes of this Act, and to meet expenditures authorized for the national security and defense and other public purposes authorized by law not to exceed $7,538,945,460. Public Debt Act of 1941, 5 Pub. L. No. 77-7, 55 Stat. 7 (Feb. 19, 1941).

[18] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 589 (1952). Roughly, executive action bears the highest presumption of constitutionality when taken pursuant to a statute. Executive actions are most dubious when they conflict with a statute. Where Congress has not acted, the President can only rely on inherent powers.

[19] For good reason there are no judicial precedents for whether legal obligations to pay in substantive legislation, namely mandatory spending including but not limited to entitlements, would prevail over obligations subject to annual appropriations, or other contractual obligations, in the event of a default. Regarding statutory commitments and contractual commitments dependent on appropriations, Salazar v. Ramah Navajo Chapter and Maine Community Health Options v. United States would seem to imply that contractual obligations dependent on annual appropriations may not be reduced on a pro-rata basis in the context of a default, unless the obligation has already been capped (Maine).

[20] Though whether the Court could hold the debt invalid but enforceable is another question.

[21] Barron, Saikrishna Prakash, The Sweeping Domestic War Powers of Congress, 113 MICH. L. REV. 1337, 1347–51 (2015) Stephen I. Vladeck, Note, Emergency Power and the Militia Acts, 114 YALE L.J. 149, 151, 153 (2004), For a contrast, see JOHN YOO, CRISIS AND COMMAND (2009). FDR may also offer a pertinent example. See Alden A. Fletcher, Roosevelt’s Limited National Emergency, Crisis Powers in the Emergency Proclamation and Economic Studies of 1939; see also Fionnuala Ní Aoláin, Law in Times of Crisis by Oren Gross.

[22] Harvey C. Mansfield, Taming the Prince: The Ambivalence of Modern Executive Power (1989).