Howell E. Jackson, The 2011 Debt Ceiling Impasse Revisited, in Is U.S. Government Debt Different? 55 (Franklin Allen, Anna Gelpern, Charles Mooney & David Skeel eds., 2012).
Abstract: In 2011, the federal government came perilously close to reaching the statutory limit on public debt. For the first seven months of the year, the Obama Administration and congressional Republican leaders engaged in an elaborate sequence of press conferences and closed door negotiations. Straightforward measures to increase the public debt ceiling were caught up in partisan politics and larger questions of deficit reduction and fiscal policy. Only on the eve of crisis – on August 2, 2011 – when the federal government was within hours of being unable to pay its bills in a timely manner, did a compromise emerge in the form of the Budget Control Act of 2011, which established a three step process for raising the debt ceiling by at least $2.1 trillion. For the first time in a generation, policy analysts and budget scholars confronted the question of what would happen if political processes had in fact broken down and the debt ceiling had been reached. My goal in this essay is to explore that question. I begin by distinguishing several distinct phases of debt ceiling crises and then explore the dilemma that the Treasury Department would have faced in August 2011 had a compromise not been reached. At that point, the crisis would have transitioned from what I label a Phase One Debt Crisis, when the Executive manipulates federal accounts in what has become a stylized dance of creating additional borrowing capacity while political compromises are forged, into what I term a Phase Two Debt Crisis, when the debt ceiling is reached, no additional accounting shenanigans are available, and the Executive must determine which of the government’s bills to pay and which bills to defer. As it turns out, the legal framework of a Phase Two Debt Crisis is not well defined. Though some scholars have suggested that the Public Debt Clause of the Fourteenth Amendment to the U.S. Constitution offers guidance under these circumstances, the constitutional constraints in a Phase Two Debt Crisis are far from clear. Conceivably, statutory provisions governing federal budget procedures may offer some guidance in defining how the Executive should proceed when federal commitments exceed cash on hand and additional borrowing is not authorized. But even these statutory guidelines are only useful by analogy, and ultimately the Executive retains considerable discretion as to the order in which federal obligations are liquidated during a Phase Two Debt Crisis. The essay concludes with a series of suggestions as to how future Treasury Departments might proceed in the not entirely unimaginable possibility that the United States hits the public debt ceiling (perhaps in the third quarter of 2017) and confronts a genuine Phase Two Debt Crisis for the first time.