Garrett Epps, a legal journalist and professor at University of Baltimore School of Law, has made an even broader argument in a pair of articles for The Atlantic’s website. In an interview, Epps told me that there was a strong argument that the debt ceiling is unconstitutional because it exceeds the legislative branch’s power of the purse. The argument goes like this: Because Congress already appropriated the funds in question, it is the executive branch’s duty to enact those appropriations. The debt ceiling, then, is legislative “double-counting,” because the executive branch is obligated to spend the money Congress appropriates, without having to go back and ask again for permission.
Of course, you can figure out a reasonable-sounding legal argument for anything, and said reasonable-sounding legal argument will get accepted or not based on the interests in the judge in question, so the real question isn’t whether “ignoring it” would work legally, it’s whether it would be a good idea.
I’m not too sure about that. Aside from the practical questions of how much uncertainty would be created in the short term, there’s the question of whether or not we want the solution to every thorny legislative problem to be “Magical President Time.” This ends up leading to dangerous thoughts for just about everyone, from the President (who thinks s/he can do whatever s/he wants) to citizens (who wonder why, if the President can do whatever s/he wants, hasn’t the President solved all of life’s problems?). Magical realism regarding the Presidency is a dangerous line of thought and should be discouraged whenever possible. On the other hand, a second recession would be disastrous and would forever shatter confidence in the government. So that’s bad too.
(And, yes, it can happen: a far less radical conservative caucus sunk the TARP deal temporarily. I’m quite sure they’d be willing to risk economic armageddon.)