With two weeks to go before the national debt ceiling is expected to be reached, sparking a constitutional and economic crisis, House Republicans continue to push for President Biden to give in to their threats.

The problem is that if Biden makes any concessions in price for raising the debt ceiling, it will encourage Republicans to hold the global economy hostage again and again. After all, their proposal would only provide a brief respite from extortion, paving the way for another confrontation in less than a year.

What happens if Congress fails to raise or suspend the statutory debt limit before the start of next month, when the Treasury Department expects to run out of money to cover the country’s obligations without borrowing any further? Conventional wisdom says the president should

to elect

which

creditors must pay and which ones

too stiff. But the conventional wisdom is wrong.

The Constitution assigns the power to spend money to Congress. Supreme Court cases under Presidents Nixon and Clinton have found that a president who fails to spend money appropriated by Congress unconstitutionally usurps the legislature

.

Biden could no more fail to pay the country’s bills than he could refuse to serve as commander in chief of the armed forces.

But while it would be outright illegal for the president to unilaterally decide not to meet some of the country’s legal obligations in full and on time, sometimes called prioritization, the same can be said of any presidential effort to raise revenue through taxes or more loans than the debt. ceiling.

Once we hit the debt ceiling, no matter what Biden does, Biden will run into a constitutional obstacle. Failure to spend appropriated money, raise taxes, or borrow money to pay the bills would all infringe on the constitutional powers of Congress. The president would face what we have called a trilemma in which all his options are unconstitutional.

Does this mean that the president should do nothing? Hardly. It’s not even clear what nothing would mean in this context. Are you not paying the bills? That would amount to unconstitutional austerity. Hiding in his beach house in Rehoboth? That would simply force other executive branch officials to decide how to encroach on congressional powers.

However,

a choice must be made.

Comparing household and government finances is often useless, but here it offers some guidance.

Think of a renter in financial distress who risks eviction if she skips a month’s rent, but also has to buy gas and make payments on the car she needs to get to work. She explores alternatives: maybe the landlord will cut her some slack; maybe she can leave the car and take a bus. Even when there’s no escaping an unappealing choice, she doesn’t give up easily.

least bad

choice.

The same principle applies to a president: if all of his options are unconstitutional, he must

at least unconstitutional

choice. So what unconstitutional option to unilaterally raise taxes, break spending laws, or borrow above the debt ceiling is the

least

unconstitutional? The answer lies in the delicate balance of power of the Constitution.

The nations’ complicated tax and spending laws reflect a wide range of controversial congressional decisions, from how much to spend on child nutrition programs to the size of tech grants to the level of aid to veterans. If the president chooses to raise unilaterally, he would be faced with the question of whose taxes to raise and by how much. If he refused to release the money Congress has appropriated to cover our legal obligations, he would have to decide which bills to pay in full, which in part, and which to pay.

not

pay in full

Every aspect of these choices would be legislative

.

The president would become a one-person legislature, overriding the compromises and compromises made by Congress.

By contrast, the president would not have to make legislative decisions to exceed the debt ceiling. He would simply instruct the Treasury Department to continue issuing bonds sufficient to cover the deficit between taxes and credits, as always. Borrowing above the debt ceiling is clearly the least unconstitutional option, as the president would just make one simple decision instead of jumping into the realm of rewriting multiple laws.

But wait a minute: could there be a completely constitutional option, selling the equivalent of the car and taking the bus instead? The short answer is no.

Some suggest

issuing exotic bonds based on a hyper-technical reading of the debt ceiling statute.

Others suggest

the administration pays off the debt by minting a multi-trillion dollar platinum coin and depositing it with the Federal Reserve. That

would try

to exploit an extremely dubious legal loophole while simultaneously rocking global markets more than any other option. In addition to inviting court invalidation, both the coin and the bonds would

probably probably

count as debt and thus fail to achieve the goal of circumventing the ceiling.

What about Section 4 of the 14th Amendment, which commands that the validity of the United States’ national debt should not be questioned? While some have incorrectly suggested that Biden could “invoke” that constitutional provision to disable the debt ceiling as Harry Potter invokes his protective Patronus, the provision does not grant the president any special powers. It does mean, however, that a president cannot fail to pay the country’s bills and would therefore lead Biden to the same course that we are pushing for.

We wish there was a magic spell to neutralize the debt ceiling. But even without one, the president has options. He must choose the least unconstitutional and continue to honor our national obligations.

Neil H. Buchanan is an economist and professor of law at the University of Florida Levin College of Law. Michael C. Dorf is a professor of law at Cornell Law School.