If the debt ceiling is inconsistent with existing spending and taxing laws, what must the President do? In earlier work, we argued that when Congress creates a “trilemma” — making it impossible for the President to spend as much as Congress has ordered, to tax only as much as Congress has ordered, and to borrow no more than Congress has permitted — the Constitution requires the President to choose the least unconstitutional path. In particular, he must honor Congress’s decisions and priorities regarding spending and taxing, and he must issue enough debt to do so. Here, we extend the analysis in two ways. First, we rebut several recently-advanced arguments that purport to dissolve the trilemma. We explain that upon close inspection some such arguments amount to non-sequiturs, while one potentially promising solution would merely substitute a nondelegation violation for a separation-of-powers violation. Second, we ask whether our original analysis changes if both Congress and the President, when they pass the annual appropriations measures, knowingly create a trilemma. We conclude that the answer does not change, that is, that spending and taxing laws must still take precedence over the debt ceiling. Accordingly, the debt ceiling is effectively a dead letter, and both Congress and the President should treat it as such.
Neil H. Buchanan & Michael C. Dorf, Bargaining in the Shadow of the Debt Ceiling: When Negotiating Over Spending and Tax Laws, Congress and the President Should Consider the Debt Ceiling a Dead Letter, 113 Colum. L. Rev. Sidebar 32 (2013)