President Biden has threatened to increase debt without congressional approval. He argued in June that the 14th Amendment’s reference to debt makes it unconstitutional for the nation to default on debt.
Failure to lift the debt ceiling would have resulted in debt default. A default occurs when the Treasury does not have enough money to pay for obligations it has already incurred. The crisis was averted when Biden and congressional leaders agreed to lift the debt ceiling as part of a budget agreement. What the president and Congress agreed to do is to kick the can down the road. The debt limit was suspended for two years until 2025.
Congress continues to struggle to live with that budget agreement, and the legislators have yet to agree on most appropriations and face a September 30 deadline. If they miss the deadline, the government will shut down.
We must avert a constitutional crisis over debt. If the controversy over the debt limit reaches the Supreme Court, it is not clear how the justices would decide the question, or if they would even decide to hear the case. Moreover, it is unclear if elected officials or anyone else would have standing under Article III of the Constitution. The court may be reluctant to decide a case involving proceedings between the executive and legislative branches of government.
There is a solution to this crisis. The Founding Fathers anticipated that it would be difficult for the president and Congress to always agree, especially regarding limitations on Congress’s power of the purse. They incorporated Article V in the Constitution, which gives citizens, states and Congress the power of proposing amendments.
Citizens and the states have been proposing a Fiscal Responsibility Amendment to the Constitution for more than a century. But Congress has failed to count these resolutions and call the convention. The Federal Fiscal Responsibility Foundation is challenging the failure of Congress to fulfill this duty as required under Article V.
A Fiscal Responsibility Amendment to the Constitution could end the crisis. The debt limit could be replaced by a new fiscal rule. The rule could freeze the total debt incurred by the federal government. Congress could then increase debt above that level only in an emergency such as war, and only with a supermajority vote under a Fiscal Responsibility Amendment.
The precedent for this fiscal rule is the Swiss “debt brake.” The debt brake was enacted through a referendum in 2001 with support from 85 percent of Swiss citizens who voted in the referendum. The debt brake requires the federal government to bring expenditures into balance with revenues in the near term, thus stabilizing the debt level. If the government runs deficits in the short term, surplus revenue must be incurred in subsequent years to offset the deficits.
With a Swiss-style debt brake in the Constitution, we could avoid a crisis over debt. Once the debt level is stabilized, new debt can only be issued in emergencies and with a supermajority vote in Congress.
An even more stringent rule could be incorporated in a Fiscal Responsibility Amendment giving citizens and Congress the power to approve additional debt. The precedent for this rule is also the Swiss constitution, which requires citizen approval for all new debt at all levels of government.
Given the threat of government shutdowns in the near term and potential default on debt in the long term, it is time for the people to act and avoid this fiscal cliff.