I’d like to put forward a proposal to stop the recurring manufactured crisis that is the debt ceiling.

Stop pretending it’s legal.

In this era of increased partisanship and stochastic violence, there’s also the pervading sense that our legal institutions are straining under their own weight. If we’re looking for root causes, we should consider the many extra-constitutional features of the nation’s political institutions as currently constituted. For starters, political parties as a legal unit of governance. The framers did not predict the emergence of parties and a few warned us directly of their malevolent influence on the republic once they emerged. George Washington famously called them, “potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people.” Add to this state-wide apportionment of electors in presidential elections, the filibuster, constraining the house membership to an arbitrary number set a hundred years ago, and you start to get a picture of the elements of our current political system that are not in the Constitution and, in fact, are often used to subvert the Constitution’s underlying principles of popular sovereignty and majority rule.

But even these ailments, bad as they may be, are not unconstitutional per se; they are omissions. They are the results of institutions and political parties taking advantage of gaps in our founding documents.

The debt ceiling, on the other hand, violates the Constitution ipso facto.

To understand why, let’s do a quick Constitutional refresher on the relevant sections: In Article I, Congress passes laws. In Article II, the president executes those laws, hence the “executive branch.” The relationship between Congress and the executive is crystal clear in the Constitution. It charges the president with the duty to “take Care that the Laws be faithfully executed.” We may live in strange times. Trump may claim the right to impound funds. Stephen Miller may claim “plenary authority” for the president. But we must remember the framers’ clear intent that the president’s duty is to execute laws passed by Congress. This includes laws concerning spending and debt.

The 14th amendment addresses the public debt directly, “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” The current Supreme Court likes to pretend the 13th, 14th, and 15th Amendments don’t exist, but they are just as binding as the bill of rights. On the question of debt the 14th Amendment provides an explicit directive: it is unconstitutional for the government to refuse to pay public debt. Supreme Court case Perry v. United States affirmed this interpretation of the public debt clause. Writing for the majority, Chief Justice Charles Hughes characterized “the expression ‘validity of the public debt’ as embracing whatever concerns the integrity of the public obligations.”

It’s worth noting that the 14th Amendment addressed the concern that former confederates reentering the federal government would refuse to pay the public debt as payback for Congress invalidating Confederate debt or to hold the budget hostage to gain political concessions (sound familiar?)

It’s worth taking a moment to consider the precise chain of legal obligations at work here. The constitution states the president must follow the laws set forth by Congress, and that neither Congress nor the president may question the validity of the public debt. Congress collects taxes and duties to fund the government. Congress passes a budget, which is just a law instructing the executive branch how to spend those funds.

We may not agree with specific policy decisions made along this chain of commitments, but this is how the system is supposed to work. Trump’s illegal acts in office notwithstanding, the president can’t refuse to spend the money specified in the budget, both because of his Constitutional obligation to “take care” that the budget he signed into law is faithfully executed, but also because the 1975 Impoundment Act specifically forbids it. He also can’t raise taxes to fund the budget; that power is granted to Congress in Article I, Section 8 of the Constitution. (The same section renders Trump tariff-by-executive-order scheme unconstitutional, but that’s a subject for another day). He can’t print more money; Congress vested that power in an independant (for now) agency. The only option is to borrow money within the statutory limits of the budget.

Enter the heel in our melodrama, “The Debt Ceiling.” Congress now passes a different law, separate from the budget. Contrary to much of the rhetoric around the issue, the debt ceiling has nothing to do with spending. It simply forbids the president from borrowing money once the debt reaches an arbitrary threshold. In effect, Congress has spent more than it collected in taxes, borrowed money to cover the difference, and then told the person responsible for writing the checks to stop paying the bills. If this sounds a lot like Congress calling the public debt into question, that’s because that’s exactly what it is.

This puts the president in an impossible position. Congress is, in effect, forcing the President to choose between two different ways to violate the Constitution 1) ignore the debt ceiling to meet the 14th Amendment obligation, thereby violating the budget law 2) accept the debt ceiling and ignore the budget, thereby violating the 14th Amendment. In both cases, Congress has directed the president to break a law, which also forces the president to violate the aforementioned “take care clause.”

In our system, we call laws directing the executive branch to violate the Constitution “Unconstitutional.”

Every president who has had to deal with this legal knot, thus far, has chosen option two in the hopes that there is enough slack in the system that they will not have to actually default on US debt. Both political parties have consented to this state of affairs because it allows them to extract policy concessions when they are in the minority by holding the government hostage. 

For Republicans, it’s a win-win. Shutdowns reify Republican’s accusation of government incompetence and chaos, so they either get what they want in the policy negotiations or they get thrown into the proverbial briar patch. The motivations for Congressional Democrats are more complicated. Shutdowns cause major policy headaches when they occupy the Whitehouse, effectively opening a whole new round of budget negotiations. More generally, shutdowns portray the government as dysfunctional (which, in this case, it most certainly is). People are more likely to blame shutdowns on the party advocating governmental competence and the status quo. 

In the face of an ever-increasingly authoritarian president, however, Democrats are reluctant to give up any levers to check the executive branch while they are in the minority. Some Democrats may be grateful for the opportunity the debt ceiling affords to stick a thumb in Trump’s eye. Fair enough. But taking a step back, it’s hard to see how assenting to the debt ceiling has been anything less than a disaster for Democrats. Further, it’s hard to see how it will work out any better for them in the future. Yes, the public may blame Republicans for shutdowns occasionally, but shutdowns generally give the public the impression of a political system lurching uncontrollably from one self-inflicted crisis to the next. This makes voters gravitate towards reform/change candidates and away from candidates advocating for basic government functions: e.g. Democrats. Meanwhile Republicans will continue to use this process to extract policy preferences outside of normal legislative and Constitutional processes. This is a fight on Republicans’ turf, and Democrats are fools to continue to fight here.

Trump’s actions during this particular shutdown illustrate the dangerous power vacuum that bad actors can exploit when Congress abandons its Constitutional role. Trump’s decision to pay military personnel with money siphoned from research and development funds may sound like a good-faith effort to support the people who protect us, but it violates a foundational principle of the Constitution. It’s the People’s money and the People choose how to spend it through their representatives. If the executive can spend money the People have not allocated, and pay for it with funds the People set aside for a different purpose, then the president is no longer “executing” the will of the People: he is executing his own will. We kinda’ fought a Revolution over this issue. We shouldn’t be so quick to abandon it.

So, what should Democrats do?

Democrats should state clearly that the debt ceiling is Unconstitutional. They should seize this superseding principle and refuse to get bogged down in the weeds of extra-legislative budget debates. Say it clearly, if any president chooses to shut down the government or honor the nation’s debts, they are violating the law and the Constitution.

Use the occasion to make a simple point on the national debt: Tax. The. Rich. Government shutdowns are unpopular. Austerity measures are unpopular. By refusing to engage in the process that creates these unpopular outcomes for voters, Democrats will leave Republicans holding the bag. They will also set themselves up for a winning platform built on the pillars of Fairness, Reform, and the Constitution.

More on this platform to come.