I realize that this might come as a shock to RBC readers, but sometimes Congress passes statutes that conflict with each other. What do courts do when faced these problems? And what does it have to do with the debt ceiling?
Well, consider this problem. Congress passes a debt ceiling bill. Then it passes a bill directing the President to pay for something, say the Army. But the only way that the President can pay for the Army, given the fiscal situation, is to borrow money to do it.
Usually, when faced with this dilemma, courts will apply the “last-in-time” rule, which is just what it sounds like: the last-in-time statute wins.
So how does this apply to the debt ceiling? If Congress passes annual appropriations in 2011, directing the President to spend money on, say, the armed forces, it would not be implausible to argue that the debt ceiling simply does not apply as a matter of statutory construction. (Note that this is not a constitutional argument about the Public Debt Clause). Clearly, the issue would turn on the precise wording of the statutes, but if these statutes direct the expenditure of funds, and the President must choose between either violating these statutes, or violating the debt ceiling, then he would be on good legal grounds if he chose the former.
Let’s go through some categories:
1) Annual appropriations, such as the armed forces, education, EPA, etc. Certainly these would post-date the debt ceiling, which was last enacted in 2006.
2) Entitlements. Entitlement programs do not get annual appropriations, although generally their mandatory language is quite strong. Thus, this would turn on when the entitlement program was enacted. That would militate against payment under the last-in-time rule. However:
Case A. Updated entitlements. Many entitlement statutes were enacted many years ago, but were updated. For example, Congress created Medicare in 1965, but updated it last year. Indeed, the Affordable Care Act is untelligible without essentially incorporating the original Medicare provisions of 42 United States Code by reference. One could argue, then, that Medicare and Medicaid are last-in-time to the debt ceiling.
Case B. Older entitlements. The big one here is Social Security (or more precisely, the old age pension provisions of the Social Security Act, which is what we’re really talking about). I’m not sure, but I don’t think that Social Security has been amended since 2006. That might mean that if its provisions and the debt ceiling apply, then the Social Security checks don’t go out. Good luck with that one. Depending upon how the trust fund works, this might be irrelevant because Social Security has the claim on those funds. And since the trust fund holds its money in Treasury Bills, the SSA might be a creditor under the Public Debt Clause!
But apart from Social Security, there are other older entitlements that don’t have the old age pension program’s structure. For example, Supplemental Security Income (SSI), which assists more than 8 million aged, blind, and disabled, is paid out of general revenues. I believe that the same is true with the Supplemental Nutrition Assistance Program (SNAP), better known as Food Stamps.
Again, none of this is certain, because courts generally don’t like to find conflicts, and they will look closely at statutory language to see if there is a genuine conflict. But it’s very plausible to suspect that there will be a lot of genuine conflicts.
So on a purely statutory basis, a preliminary analysis shows that the Republicans get some but not all of what they want from blocking an increase in the debt ceiling. They won’t be able shut down the government, or block Medciare and Medicaid. But they will be able to cause a lot of pain and suffering to low-income aged, blind, disabled people, especially those who suffer from undernourishment. I suppose that that will make them sleep better at night.