If Congress won’t act, the president must

As with the shutdown impasse, however,Tea Party Republicans in the House refuse to provide the votes necessary to raise the debt ceiling (or to approve a continuing resolution that would reopen the government) unless the Affordable Care Act is defunded or its implementation postponed. 

Thus it was shortsighted for the president’s spokesman (Treasury Secretary Jack Lew) to reject out of hand executive branch options for ending the fiscal cliff stalemate.  Unless the Republicans abandon their unyielding position on the Affordable Care Act before October 17, the U.S. will become, for the first time in its history, a deadbeat nation--and the government’s doors will remain closed.

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To avoid the dire consequences of such events,  the president should declare now, clearly and firmly, his intention to act in the absence of Congress. That is, he should be ready and willing to disregard the debt ceiling law.

As some have suggested, Obama could simply assert his implied authority as president to save the country from economic disaster. Or he might resort to the Fourteenth Amendment of the Constitution, Article 4 which provides that “The validity of the public debt of the United States, authorized by law,...shall not be questioned” and a 1935 case (Perry v. U.S.) in which the Supreme Court determined that Congress does not have the authority to renege on its obligations to lenders.

As Brookings Senior Fellow Henry J. Aaron noted in a recent New York Times oped, “If President Obama spends what the law orders him to spend and collects the taxes Congress has authorized him to collect, then he must borrow more than Congress has authorized him to borrow.  If the debt ceiling is not raised, he will have to violate one of these constitutional imperatives.”  In such a situation, violating the debt ceiling law would be the wiser choice.

WhenTea Party Republicans call for concessions by the Democrats, it is not “compromise” they seek, but rather capitulation. 

While his budget should remain negotiable, Obama must remain steadfast in his pledge not to backtrack on his signature health law because it was enacted into law, upheld by the Supreme Court, affirmed by the 2012 election and is now in its early stages of implementation. 

Upon taking office, each member of Congress swears an oath to support and defend the Constitution of the United States and to “faithfully discharge the duties of office” (which would seem to include payment of the government’s bills).  Furthermore, Republican intransigence on the shutdown and ongoing threats to default on debt have already cost America jobs, increased government expenses and financial standing. 

Ordinary citizens have suffered losses or serious inconvenience from the interruption of government services. Even such damage as it continues would pale in the face of a U.S. debt default.  Global investors would no longer regard US bonds as safe investments.  Markets everywhere would tumble. The outcome would likely be a new recession or worse.

The current Republican demands trample on established traditions of reasoned debate and orderly procedure in Congress.  Why should those who break their oath of office (a federal crime) not be held accountable?   Their unprecedented and irresponsible actions against our government and its citizens would appear to warrant at least expulsion under the U.S. Constitution.

With full awareness of the political risks (including possible impeachment), Obama should assure the world that America will continue to honor its just obligations, whether or not Congress acts to raise the debt ceiling.

Executive branch action to spare the country another devastating financial crisis would be  a worthy act of courage.

Hager is co-founder and former director general, International Development Law Organization, Rome.