July 26, 2011
In a July 22 op-ed published in The New York Times ‘Opinion Pages’, HLS Professor Adrian Vermeule ’93 and his co-author, University of Chicago Law Professor Eric A. Posner ’91, address the current deadlock between President Barack Obama ’91 and Congress on raising the country’s legal borrowing limit by the August 2 deadline to avoid default.
The authors argue that, absent coming to terms with Congress, President Obama should raise the debt ceiling unilaterally—and that he would be on solid constitutional ground in doing so.
The authors write: “Our argument is not based on some obscure provision of the 14th amendment, but on the necessities of state, and on the president’s role as the ultimate guardian of the constitutional order, charged with taking care that the laws be faithfully executed. … even if [the 14th amendment’s] debt provision did not exist, the president would derive authority from his paramount duty to ward off serious threats to the constitutional and economic system.”
Vermeule, an expert on constitutional law and theory, is the John H. Watson, Jr. Professor of Law at HLS. His most recent book, also co-written with Posner, is titled “The Executive Unbound: After the Madisonian Republic” (Oxford University Press, 2011).
Obama should raise the debt ceiling on his own
By Eric A. Posner and Adrian Vermeule
President Obama should announce that he will raise the debt ceiling unilaterally if he cannot reach a deal with Congress. Constitutionally, he would be on solid ground. Politically, he can’t lose. The public wants a deal. The threat to act unilaterally will only strengthen his bargaining power if Republicans don’t want to be frozen out; if they defy him, the public will throw their support to the president. Either way, Republicans look like the obstructionists and will pay a price.
Where would Mr. Obama get his constitutional authority to raise the debt ceiling?
Our argument is not based on some obscure provision of the 14th amendment, but on the necessities of state, and on the president’s role as the ultimate guardian of the constitutional order, charged with taking care that the laws be faithfully executed.
When Abraham Lincoln suspended habeas corpus during the Civil War, he said that it was necessary to violate one law, lest all the laws but one fall into ruin. So too here: the president may need to violate the debt ceiling to prevent a catastrophe — whether a default on the debt or an enormous reduction in federal spending, which would throw the country back into recession. … read the full op-ed at NYTimes.com »