“The reason the debt ceiling is unconstitutional is the constitutional choice should always be the one that limits the powers of the president,” Buchanan said. “If I were the Republicans, giving the president the authority to pick and choose which spending to cut would scare the bejeesus out of me.”
Not all constitutional scholars share this viewpoint. Lawrence H. Tribe, a constitutional law professor at Harvard, wrote an opinion piece last year arguing the president could not usurp the legislature’s power to borrow money on the credit of the United States.
There’s no question, however, that an executive decree raising the debt ceiling would bring an explosive response from congressional Republicans.
“I don’t think he has the authority to do that,” said Rep. James Lankford, R-Okla. “It does create a constitutional challenge with the courts immediately of what authority does the president have. Does he have unlimited authority to spend?”
GOP leaders also would likely take action to try to halt Obama’s move.
“That would give President Obama, and every future president, authority to spend infinite sums of borrowed money,” said Michael Steel, a Boehner aide. “The American people wouldn’t stand for it, and neither would members of Congress in either political party.”
Buchanan said Republicans could file impeachment charges on Obama and would probably take the president to court. But he said judges might be reluctant to get involved in such a political matter, and that Obama could argue he was simply obeying his oath of office to administer tax and spending programs already approved by Congress.
“I think the president would win on that analysis,” he said.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.