Ordinarily, members of Congress, regardless of party or circumstances, don’t like it when the White House – any White House – tries to circumvent lawmakers. The legislative and executive branches are co-equal, after all, and neither likes it when one tries to go around the other.
But as we inch closer to a debt-ceiling crisis, the entire Senate Democratic leadership has a message for President Obama: go around us. Greg Sargent reported this afternoon:
In a move that will significantly ratchet up the brinksmanship around the debt ceiling, the four members of the Senate Democratic leadership are privately telling the White House that they will give Obama full support if he opts for a unilateral solution to the debt ceiling crisis, a senior Senate Democratic leadership aide tells me.
The four Democratic leaders – Senators Harry Reid, Chuck Schumer, Dick Durbin and Patty Murray – have privately reached agreement that continued GOP intransigence on the debt ceiling means the White House needs the space to pursue options for raising it that don’t involve Congress, and that the White House needs to know that Dems will support whatever it decides to do.
“In the event that Republicans make good on their threat by failing to act, or by moving unilaterally to pass a debt limit extension as part of an unbalanced or unreasonable legislation,” they wrote, “we believe you must be willing to take any lawful steps to ensure that America does not break its promise and trigger a global economic crisis – without Congressional approval, if necessary.”
Note, the Democratic leadership didn’t say how the White House should act unilaterally; just that it should act unilaterally if the need arises. There are alternatives, including the much-discussed trillion-dollar coin, which the president could conceivably choose from.
The legality of unilateral action remains tricky, which is why today’s letter seems especially noteworthy – if there was a legal fight between the branches, the entire leadership of the Senate majority is already prepared to side with the executive.
Why is this legally complex? Because we’d have what Dan Radmacher called “a conflict of law.” On the one hand, the White House is obligated to follow the law that creates the debt ceiling. On the other hand, the White House is obligated to spend the money that Congress has appropriated.
On top of this, under the Constitution, the White House is also legally obligated to protect the full faith and credit of the United States, which congressional Republicans are apparently prepared to ignore.
If Republicans follow through on their threats, we’d have, among other things, an untenable legal dynamic: President Obama can’t pay the government’s bills, and he can’t not pay the government’s bills.
And so, for Sens. Reid, Schumer, Durbin, and Murray, the advice to Obama is pretty straightforward: do whatever you have to do and we’ll back you up.
Update: I should also note that this should get the GOP’s attention, too. If there’s a crisis, Congress would not speak with one voice. It wouldn’t be Congress vs. the White House; it’d be the White House vs. those who are holding the debt ceiling hostage, threatening to crash the economy on purpose unless their demands are met.
Second Update: Neil H. Buchanan, a law professor and economist at George Washington University Law School, and Michael C. Dorf, a Cornell University Law School professor and former law clerk for U.S. Supreme Court Justice Anthony Kennedy, argue today that if/when push comes to shove, Obama will have a legal obligation to simply ignore the debt ceiling.