The Constitution Requires Congress to Set a Debt Limit

But although Congresses controlled by both parties have used the latter approach in recent years, it is unconstitutional. Article I Section 8 gives Congress the authority to “borrow money on the credit of the United States.” It doesn’t permit wholesale delegation of that core legislative power to the executive branch.

For a century and a half, Congress properly exercised its borrowing power by prescribing the many particulars, including the amounts, of various types of debt to be issued by the Treasury. In 1939 Congress switched to legislating an aggregate debt ceiling that effectively allows the Treasury to borrow money up to a certain amount, without Congress having to vote each time the government issues a specific set of debt instruments.

The Treasury undoubtedly has far more expertise than Congress in how to issue debt, so it’s appropriate to leave the particulars to the executive branch. The debt limit ensures that ultimately it is Congress that determines how much the national debt will be at any given time. Suspending the limit, by contrast, removes any restraint from the Treasury and gives it no “intelligible principle” on which to carry out its delegated functions. The Supreme Court requires such a principle for any congressional delegation of authority to a federal agency.

The “nondelegation” doctrine was first articulated by Chief Justice

John Marshall

in Wayman v. Southard (1825): Congress, he stated, can’t delegate “powers which are strictly and exclusively legislative.” The justices later established the “intelligible principle” test to determine whether in any given case Congress has crossed the line in delegating its authority to the executive branch.

As Justice

Elena Kagan

put it in the court’s most recent nondelegation case, Gundy v. U.S. (2019): “The constitutional question is whether Congress has supplied an intelligible principle to guide the delegee’s use of discretion.” That case dealt with a capacious delegation of authority to the attorney general to impose retroactively certain registration requirements and associated penalties on sex offenders who have completed their sentences. The justices disagreed on whether the relevant statute met this test, and over the meaning and utility of the term “intelligible principle” itself.

But, whatever “intelligible principle” means, it can’t mean no principle whatsoever. And that is what a simple “suspension” of the debt ceiling implies—the Treasury is permitted to borrow as much money as it believes to be necessary and to make the ultimate policy choice of how high the national debt may climb. That is the most important question for anyone taking out a loan—how much is too much. Only Congress can make that choice, and it can’t escape this politically dangerous responsibility by passing the buck to Treasury. As Justice

Neil Gorsuch

wrote in his Gundy dissent: “Abdication is ‘not part of the constitutional design.’ ”

It isn’t enough that Congress has appropriated the money the Treasury is obligated to spend. The power to spend money through an appropriation is separate and distinct from the power to borrow money. In principle, appropriations can be met purely through tax revenue. If the revenue is insufficient to satisfy the appropriation, Congress has the power—and the duty—to raise taxes, cancel or revise the program, or incur debt to pay for it. All these are core legislative functions that lawmakers can’t delegate without an intelligible principle.

The constitutionally required intelligible principle has to be explicitly featured in the legislation authorizing a specific delegation of congressional power. Extrinsic limitations—e.g., the reality that, notwithstanding the debt-ceiling suspension, Treasury can’t engage in limitless borrowing because market-disciplining forces wouldn’t allow it—won’t suffice.

Within the context of the overall separation of powers architecture, the Framers established the power of the purse as the core congressional authority. That power includes several distinct, constitutionally prescribed components: the Taxing and Spending Clause, the Borrowing Clause, and the Appropriations Clause—all of which require separate and accountable exercises of legislative authority. In exercising these powers, it would be unconstitutional for Congress to authorize the Treasury to raise taxes or spend money without limit. The same is true of going into debt. Congress should properly discharge its constitutional obligations and increase the debt ceiling by a specific amount.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and