Although an acquaintance (a noted constitutional scholar) emailed me today “it is difficult to believe anyone could be so far gone as to think the President can transgress a debt limit on his own authority,” he underestimates the “can-do” (or maybe it should be “can’t-do”) spirit of the U.S. Senate. According to this article, several U.S Senators are toying with the idea that the debt limit is unconstitutional under the Public Debt Clause:
“This is an issue that’s been raised in some private debate between senators as to whether in fact we can default, or whether that provision of the Constitution can be held up as preventing default,” Sen. Chris Coons (D-Del.), an attorney, told The Huffington Post Tuesday. “I don’t think, as of a couple weeks ago, when this was first raised, it was seen as a pressing option. But I’ll tell you that it’s going to get a pretty strong second look as a way of saying, ‘Is there some way to save us from ourselves?’”
It should be noted that this comes on the heels of Senator Coons’s performance in the Senate Foreign Relations Committee hearing on Libya yesterday. Questioning State Department Legal Advisor Harold Koh, who testified that the Libyan military operation did not constitute “hostilities” within the meaning of the War Powers Resolution, Coons congratulated him on making a “rather compelling case” that congressional authorization was not needed under the WPR (although, somewhat bewilderingly, Coons also described Koh’s interpretation of “hostilities” as “strained,” “very narrow,” and in “very real tension” with a common-sense understanding of the term).
Apparently Senator Coons thinks that the way to “save Congress from itself” is to outsource its power to the executive branch. When this or some future president asserts that he can both conduct and fund military operations on his own authority, regardless of what Congress says, and people wonder where he could get such an idea, perhaps Senator Coons will take a bow.