National Press Club

Budget deal does not solve problem, debt-ceiling expert says

October 17, 2013 | By Monica Coleman |

Americans may be breathing a sigh of relief as a result of the stop-gap budget deal reached minutes before the Oct. 17 U. S. default date, but unless the nation’s political parties can agree to repeal the underlying debt-ceiling law, Congressional gridlock is likely to recur, warned constitutional scholar Neil H. Buchanan at a National Press Club Newsmaker Oct. 14.

"As a constitutional matter, the debt-ceiling law is defective and not enforceable – [and] not just on 14th Amendment grounds,” said Buchanan, a professor at George Washington University Law School and a leading expert on the legislation.

In addition to the 14th Amendment challenge, he said, “the law is unconstitutional on the basis of separation of powers,” as it forces the president to abide by three conflicting laws. Since he would necessarily have to break one of the laws, the president is in what Buchanan called an “impeachment trap,” which he said is unconstitutional.

Explaining the three conflicting laws, Buchanan noted that the first, which governs spending, requires the president to spend the money allocated by Congress. The second – on taxes -- requires the president to collect the exact amount specified by Congress – no more, no less. And the third law – the debt-ceiling measure – presents a problem because, unless Congress agrees to raise the ceiling, it prohibits the president from making up the difference between the spending and taxing laws.

Buchanan referred to this scenario as a “trilemma.” It will continue to promote a gridlock in the budget process until the legal conflict is resolved,” he warned.

Buchanan faulted both political parties for the standoff. “The Republicans are wrong in believing that the debt-ceiling statute can be used to threaten default in order to get concessions on other issues,” he said. “The president and Democrats are wrong because the strategy they’ve adopted won’t make this go away.” That’s why, he explained, the constitutionality of the law needs to be challenged.

The George Washington professor said that instead of a debt limit, budgets should be controlled by an economically sound balance between revenue and spending. But that would be difficult to achieve now, he acknowledged, because the law requires all revenue bills to originate in the U.S. House of Representatives.

A budget resolution is unlikely in the current political arena, Buchanan said, because the Democrat-controlled Senate wants to spur the economy through government spending, while the Republican-controlled House believes economic growth will come through cutting taxes and reducing debt.

If the debt-ceiling law were not being misused, he said, this battle likely would take place in the appropriations committees of the two Congressional chambers – a more appropriate procedural process.