Here’s how Biden can avoid default and a constitutional crisis 

The media is flooded with debt limit hysteria and an array of flaky ideas about how to avoid default (for example, trillion dollar coins). But despite all the noise about imminent catastrophe, the Treasury’s operations should proceed normally without interruption, even if Congress does not raise the statutory limit on the public debt. That is because the law requires it.  

Article II, Section 3 of the Constitution requires the president, as chief executive, to “take care that the Laws be faithfully executed.”  But what is the president’s constitutional duty when the spending laws are in conflict?  This is our current situation. 

Specifically, in December 2021, Congress enacted in a single sentence an increase in the debt limit to an amount that will soon be insufficient to meet the financial obligations of the United States.  

But one year later, in December 2022, Congress enacted a highly detailed spending law, the Consolidated Appropriations Act of 2023. This public law laid out, in its 1,653 pages, annual congressional appropriations for most federal agencies and programs, as well as requiring payments from the Treasury for entitlement programs (except for those that are permanently appropriated). 

In order to “faithfully execute” the spending statute enacted by Congress in December 2022, the president must order the Treasury to proceed with bond auctions necessary to enable its implementation.  

There are two canons of statutory construction that require this result. First, when two laws conflict, the more recent law prevails, a canon known as the “last-in-time rule.” Second, when two laws conflict, the specific law prevails over general law, a principle known as the “general-specific canon.” 

Based on both principles, President Biden must, as a matter of law, give priority to the specific appropriations enacted in December 2022 over the general debt statute enacted one year earlier.  

The president’s constitutional responsibility to execute current appropriation laws is further supported by the Impoundment Control Act of 1974, which makes it unlawful for the president to withhold congressionally enacted spending unless Congress has enacted specific rescissions of budget authority. There are no statutes or statements of legislative intent suggesting that Congress intends to rescind any provision of the December 2022 appropriations law.   

What about spending for permanently appropriated programs like Social Security and Medicare, where the appropriations were enacted prior to the debt limit?  Here, too, the president is required to faithfully execute the laws enacted with much greater specificity over the more general debt limit law.   

Social Security and Medicare are enacted in the Social Security Act with specific legal guarantees that the Treasury shall pay specified benefits to eligible beneficiaries and to medical providers on behalf of beneficiaries. The president’s statutory duty to pay these specific benefits overrides the general language of the debt limit law.   

Payment of interest on Treasury securities is also permanently appropriated. The Treasury’s responsibility to raise cash necessary to pay interest is clearly required by the 14th Amendment: “The validity of the public debt of the United States…shall not be questioned.”  

The best outcome, of course, would be a two-year Bipartisan Budget Act, similar to the laws enacted four times over the last decade (in 2013, 2015, 2018, and 2019). However, if agreement cannot be reached due to political gridlock, the president’s constitutional responsibility is clear: he must “faithfully execute” the appropriations enacted in 2022 and the benefit payments specifically guaranteed in the Social Security Act and similar entitlement statutes. 

If Congress had wanted to condition these spending statutes on an increase in the debt ceiling, they could have done so by simply adding a proviso that “spending under this law shall be subject to the availability of funds under the statutory limit on the public debt.”  But there is no language in any of these appropriations or entitlement statutes that remotely resembles conditionality, and the Impoundment Control Act mandates the very opposite: the president must execute congressionally enacted spending law unless Congress has rescinded it, which it has not.  

Moreover, if Congress’s intention had been to subordinate recent and specific spending laws to the one-sentence debt limit, there would be statutory instructions on how the president is to prioritize payments when the debt ceiling has been reached. But there is no such mechanism, and Congress cannot constitutionally turn over its power of the purse to the president. 

This repeated debt limit hysteria inflicted on the American people and investors worldwide needs to stop. It is time for the president and the Department of Justice to make clear that the president has a constitutional and statutory duty to execute Congress’s spending and benefit laws.  

Charles S. Konigsberg, J.D., an expert on fiscal law, served as general counsel for the Senate Finance Committee with responsibility for drafting debt limit legislation, legal counsel for the Senate Budget and Rules Committees and assistant director at the White House Office of Management and Budget. He publishes TheDebtLimit.com and is the author of a legal treatise on fiscal law to be published by Matthew Bender & Co. this summer.