I find the Jonathan Zasloff-Jack Balkin-Michael McConnell arguments about the legal consequences of hitting the debt ceiling fascinating – in a macabre sort of fashion – but what really interests me is not what the experts think but what the wrecking crew thinks. When Michelle Bachmann (R- Which Planet?) says flatly in her introductory TV spot “I will not vote to raise the debt ceiling,” what, precisely, does she intend to happen next?
Clearly, the Balkin/14th Amendment view is not open to the Republicans who are holding the country hostage on the debt ceiling issue, since under that view they’re holding an unloaded gun. The remaining options seem to be:
1. The U.S. Government defaults on its full-faith-and-credit debt. (That seems to be forbidden by the Public Debt Clause.)
2. The U.S. Government prints currency, or issues some sort of scrip not backed by full faith and credit, to continue making the payments authorized by statute.
3. The President orders that some payments not be made, in order to remain within the debt ceiling. He does so either:
(3a) According to some legally determined set of priorities; or
(3b) At his sole discretion. (That seems to be the Michael McConnell view.)
Either version of Option 3 amounts to a partial shutdown of the government, just as would happen if the Congress did not pass a Continuing Resolution and there were no appropriations in force. In that case, could the President ask federal workers to keep working, paying them in scrip or promising to pay them in currency later? That can’t be done to avoid a shutdown because of the “no-volunteering” provisions of the Anti-Deficiency Act, but those provisions might not apply to activities fully authorized by Congress but not affordable within the debt ceiling.
Again, I’m not asking what will happen, but what the Republicans think will happen, and therefore what they intend to have happen when they vote against extending the debt ceiling. My guess, of course, is that intend to simply criticize whatever the President does. As far as I can tell, no reporter has asked John Boehner or Mitch McConnell “Just precisely what is supposed to happen the day we hit the debt ceiling?” But that seems to me like a fair question.