Top Law Profs: Obama Doesn’t Have Constitutional Power to Avoid Default

Opinion of leading thinkers suggests the president needs a deal

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Republicans and the White House have finally started talking about the ongoing government shutdown and looming debt ceiling crisis. Though there is no deal yet, both sides claim the talks represent progress. Still, the debate over whether President Obama has authority under the Constitution to halt a government default is likely to continue. TIME put that yes-or-no question to a randomly selected group of 20 leading constitutional law professors, giving them the option of a short comment. The results will worry those who believe that Obama has the power to single-handedly reverse the situation if talks fail and a default is imminent: 13 of the professors in our sample say that Obama has no such authority; 7 say he does. The results are below:

Bruce Ackerman Yale No No comment.
Randy Barnett Georgetown Yes By prioritizing tax revenue to service existing debt. There will be no default.
Susan Low Bloch Georgetown Yes I believe the President has the power to avoid a government default.  But power, without judgment, is antithetical to good government;  Congress must exercise its own judgment and avoid forcing the President to consider this extraordinary option.
Philip Bobbitt Columbia No The President has no such authority. The suggestion has been made that the 14th amendment might provide authority to halt a default, but its provisions apply, if at all, to a repudiation of the debt, not a default and, in any case, provide the president no constitutional power to act independently of any statutory or injunctive mandate in the case of a repudiation.
Erwin Chemerinsky University of California, Irvine No The President does not have the authority to unilaterally increase the debt ceiling.  Congress has the power to borrow money under Article I; the debt ceiling is set by statute.  The President cannot take on this power or override the statute.
Andrew Coan Wisconsin No But Lincoln’s much quoted question is apt: Are all the laws but one to go unexecuted and the Government itself go to pieces lest that one be violated?
Lisa Crooms-Robinson Howard No If the debt-ceiling requires legislation that can be characterized as revenue-generating, then Article 1 requires all such laws to originate in the House of Representatives.  Article 2’s Take-Care Clause would be a source of Presidential authority in this case only if there was a law that the President would have to take care was carefully executed.
Michael Dorf Cornell No My answer is NO, but he should do so anyway because he has even less authority to cut spending without formal congressional authorization.
Charles Fried Harvard Yes No comment.
Richard Friedman Michigan No The 14th amendment says the validity of the public debt authorized by law shall not be questioned.  That does not mean the President may create debts unauthorized by law.  He is right that it is Congress’s job to authorize (or limit) borrowing, and that is why Congress has passed legislation raising the debt ceiling so many times.
Jamal Greene Columbia Yes No comment
Sanford Levinson University of Texas, Austin Yes It’s a very close question, but I’m inclined to think the answer is yes.  There is obviously a lot of fudging here, because, to put it mildly, it’s not clear where the authority comes from.  One argument is based on the 14th Amendment, but there are possibly fatal weaknesses in the argument, both legally and practically.  I’m tempted to go for the trillion-dollar platinum coin option.
Victoria Nourse Georgetown Yes No comment.
Saikrishna Prakash  Virginia No The Constitution grants Congress exclusive power over taxes, spending, and debt issuance.  If the 14th Amendment requires payment of the federal debt, the obligation rests with Congress.
Kermit Roosevelt University of Pennsylvania No The Constitution gives Congress control over spending, whether they use it wisely, foolishly, or not at all.
Stephen Sachs Duke No The Fourteenth Amendment says our debts must remain valid, but not that we always have to pay them on time.  If Congress won’t authorize more bond sales, the President can’t do that on his own, any more than he can collect illegal taxes or seize people’s property.
Louis Michael Seidman Georgetown Yes  I think that there is a nonfrivolous argument that he has the constitutional authority to ignore the debt limit.  So, I suppose, you would count me as a “yes.”  The President has forcefully and persistently claimed that he lacks the constitutional authority to ignore the debt ceiling.  This means that when he does so – as he surely will if it is necessary to avoid a calamity for the country – he will be admitting to a constitutional violation.
Laurence Tribe Harvard No No comment.
Mark Tushnet Harvard No Does the President have the power to avoid the debt ceiling? Basically no. He can decide to prioritize payments but somebody’s bound to get the short end.
Eugene Volokh UCLA No [Does he have] the authority to override the Congressionally imposed debt limit and borrow more money?  The answer is no.
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