Another Excuse for Possible Constitutional Overreach by Trump

As the presidential transition period ends, there are still a vast number of unanswered questions about Donald Trump’s willingness to extend and abuse the powers of the presidency. How far is he willing to go, and will anyone be able to stop him—or even try?

In a Verdict column last week, I noted one area in which I might actually agree with a Trump action that would look like (but would actually not be) presidential overreach. For a variety of political reasons, it is possible that a majority of either house of Congress could block an increase in the debt ceiling. If that happens, Trump could—and as I argued, should—announce that the debt ceiling is an unconstitutional statute and thus that he has no choice but to ignore it.

The reasons that this would not actually be an abuse of presidential power are important, and I will describe them in a moment. After doing so, however, I will explore how Trump could seize upon—or even create—a debt ceiling crisis as a way to enhance his powers.

The Separation of Powers and the Potential for Presidential Abuse of Congress

For the purposes of last week’s column, it was enough simply to say that the debt ceiling law is constitutional, without explaining why. Here, however, the “why” becomes the whole story, because the explanation has everything to do with the principle of presidential modesty. And modesty is a quality that we are unlikely to see in the new Administration.

In the series of articles that Michael Dorf and I wrote about the debt ceiling over the last several years, we investigated the impossible situation that a debt-ceiling crisis would create for the president. In what we called a trilemma, the president would be constitutionally obligated to do three logically inconsistent things: collect a certain amount of money (but no more) in taxes, spend a larger amount of money than that to pay the government’s legally binding obligations, but not borrow money in order to make up the difference.

One possible answer to that conundrum would be for the president simply to say, “OK, I get to choose which law or laws not to execute, because Congress gave me no other option.” We rejected that conclusion because of the Framers’ clear intent that the Constitution’s separation of powers should be preserved.

Even though anything the president would do in the face of a trilemma would violate the Constitution, therefore, he still would have the duty to minimize the constitutional damage. And that meant that he would have to decide which of the three sets of laws—spending, taxing, and borrowing—were least important in terms of preserving the constitutional separation of powers.

Would we want a president to be able to say, “Hey, I need more money to pay the bills, but I can’t borrow it, so I’m going to raise taxes on my own?” Everyone agrees that that would be politically explosive. More to the point, however, it would be constitutionally disastrous, because it would see the president making the kinds of decisions that the legislature is supposed to make—picking winners and losers (who pays more taxes, who pays less) and balancing interests in the way that a representative body is designed to do.

Although everyone agrees that unilateral tax increases by a president would be a nightmare, however, there was a surprising consensus among Washington insiders in both parties that a president facing a trilemma would be required to stop paying the government’s bills.

That solution, however, would have the president again acting like a super-legislature, overriding Congress’s decisions regarding the power of the purse. Even if the president chose a seemingly neutral approach, such as stiffing everyone who is owed money by the same percentage, that would still be a legislative-like decision. After all, Congress generally does not cut every program by the same percentage when it decides to cut spending.

That meant that a presidential decision to set aside the debt ceiling was the sole remaining choice—the least unconstitutional option. If the president borrowed beyond the debt ceiling, but Congress really and truly wanted debt to be below a certain level, it would be possible to adjust spending and taxes in the next budget to put things back where Congress wanted them to be.

Notice, however, just how restrained the president would have to be in this situation. He would not be announcing that he is allowed to borrow as much as he wants, or saying that he can use the newly borrowed funds to finance his own pet projects.

No, the president would still be required to spend exactly as much as Congress had ordered him to spend, neither more nor less. And he would also still be required to collect taxes as required by law, neither more nor less. His unconstitutional borrowing would be limited to making up the difference.

This is why I wrote in my column last week that I could, under appropriate circumstances, agree with Trump even if he seemed to be doing something extreme. It would not, in fact, be an extreme action for a president to preserve Congress’s spending and taxing priorities by borrowing the money necessary to do so.

The More Likely Path to an Abuse of Power by Trump

In 2012, during one of the several depressing episodes of debt ceiling brinksmanship by House Republicans, I wrote, “Why Do Republicans Want to Give Obama Dictatorial Powers?” That provocative title was designed to expose the logical disconnect between what the Republicans claimed was their goal and what they were actually doing.

After all, if the Republicans had not finally blinked, and thus if President Obama had been faced with a trilemma, Republican leaders claimed that he would be forced to “cut spending.” I use scare quotes here because what they would actually have forced him to do is to refuse to pay bills that Congress had already incurred in earlier spending bills. Even so, the Republicans insistently claimed that they were trying to get Obama to reduce spending.

How would he have done so? For precisely the reasons that I described above, President Obama would have been forced to redo Congress’s job in setting spending priorities. And there is no reason to think that the Republicans would have been happy with Obama’s choices.

In fact, we know for sure that they would have been unhappy even with the supposedly neutral policy that I described above, with all programs being cut by the same percentage. After all, when Congress itself did that (under what is now called “the sequester”), Republicans spent the next several years frantically trying to undo many of the automatic cuts to their favored programs (especially spending on military hardware).

And any other prioritization by President Obama would have been quite rightly seen as reflecting the president’s choices, unconstrained by law (because Congress wrote no law to cover that situation).

This means that Republicans, in saying that they refused to increase the debt ceiling because they wanted to force the president to reduce spending, would have given Barack Obama a ticket to pick winners and losers and to undo Republicans’ legislative priorities. In other words, they would have essentially begged him to act like a tyrant, and then they would have screamed bloody murder when he did so.

And Trump? He has shown that he does not need an excuse to abuse or ignore laws and constitutional norms. Expecting him to choose the modest path of the least unconstitutional option would be foolish. Give him an excuse like this, and he would be sure to run with it.

Therefore, when I wrote last week that I might agree with Trump during a debt ceiling crisis, that was not a prediction. My prediction is that, should Congress ever confront him with a trilemma, Trump would do the worst possible thing, which in this case is exactly what the Republicans were trying to get Obama to do for the last six years. Trump would refuse to pay money owed for programs that he disliked, for whatever reasons came into his head.

Can Trump Contrive a Debt Ceiling Crisis?

Perhaps, however, Trump does not need to wait around for Congress to give him the excuse to abuse his control over the Treasury. After all, a key element of the Buchanan-Dorf analysis was inspired by the nation’s unfortunate experience under Richard Nixon, the president whose abuses of power Trump might most envy and even try to outdo.

During his abbreviated presidency, Nixon claimed that he could refuse to spend money even after Congress had appropriated it for specific purposes. The case did not make it to the Supreme Court before Nixon’s resignation, but Congress responded with the Impoundment Control Act, which required the president to spend exactly as much (no more nor less) as Congress had specified in its duly enacted laws.

Years later, however, a different Congress actually tried to give away its own authority over spending by giving the president a “line-item veto,” which allowed the president to cancel spending items even after Congress had included them in appropriations laws.

The Supreme Court quickly announced that this was prohibited by the Constitution, precisely because it would have involved having the executive take over legislative responsibilities. It did not matter that Congress wanted to divest itself of those powers, the Court said. Legislators are the ones who should legislate, not executives.

But these historical examples point to a way in which Trump could concoct an unconstitutional power grab. He is hardly known for subtlety, and admittedly this is a subtle strategy. Even so, he certainly has people working for him who are eagerly looking for every possible way to expand his powers.

Specifically, Trump could refuse to sign a debt ceiling increase bill. That is, he could put himself into a trilemma on purpose, at which point he would say that he had no choice but to stiff people and companies to whom the government currently owes money.

Certainly, Trump has already shown that he is willing to target specific people and companies for punishment. Were he capable of embarrassment, he would have been embarrassed by his tweet demanding cancellation of Boeing’s Air Force One project. The amused response by people who actually know how the law works was that he could not do so, even after he became president.

This suggests that Trump would jump on any possibility to expand his power over the purse, in order to give himself the power to punish his enemies.

Trump could easily demagogue the debt ceiling, in exactly the way that Republicans have been doing for years. The tweet writes itself: “Pathetic Congress tries to borrow even more trillions. Outrage. Veto!”

An even more intriguing possibility is that Trump could try to veto a debt ceiling increase that had been included in another bill. After all, as I noted again in my column last week, the best way to handle the unconstitutionality of the debt ceiling—short of actually repealing it—would be to have Congress return to its practice under former Democratic Speaker Richard Gephardt, whose rule required that every spending bill include the necessary change in the debt ceiling that its total spending implied.

What if Congress came to its senses and followed that path, sending Trump a new spending bill that properly avoided confronting the president with a trilemma? Would he threaten to veto the whole bill, causing a government shutdown unless they take out the debt ceiling increase? Pointing out the illogic of that strategy would surely have no impact.

An even more extreme possibility would be for Trump to try to line-item veto the debt-ceiling increase, a deliciously paradoxical move that would give himself the power to veto sub-parts of bills by vetoing a sub-part of a bill. Why not? After all, maybe his allies on the Supreme Court will decide that he is allowed to do so. And if they do not, how many troops does the Supreme Court have?

The Timeless Need for Constitutional Limits on Power

As technical as the debt ceiling debate can become, it is an excellent illustration of one of the most important questions to ask when thinking about the meaning of the Constitution: What would you want the rules to be when the worst possible person is in power? An essential reason even to have a constitution, after all, is to prevent the passions of a majority (or, in this case, a minority) of citizens from obliterating the rule of law.

Republicans constantly complained about Obama’s supposed executive overreach, while Democrats wondered whether some of their pushing of the envelope might come back to bite them under a President Jeb Bush or (gasp!) Ted Cruz. Keeping the structure of law intact is essential, even as those in power test its limits.

Trump is in an entirely different category. If Democrats wondered just how far Marco Rubio or John Kasich might push the limits, their heads are now spinning at the thought of what Trump might try to get away with. And because Republicans are showing no spine whatsoever, even in the face of Trump’s historic levels of unpopularity, we might soon learn to our dismay how far Trump will go.

Manipulating the debt ceiling is not the sexiest way to abuse power, but it is a potent one. We should not expect Trump’s people to pass up any opportunity to inflict constitutional damage.