Saturday, October 05, 2013

George Kenney: "Dr. Neil H. Buchanan on Fed Shutdown & Debt" @ Electric Politics

Dear Michael,

One might suppose, given the huge importance of a potential U.S. debt default, that the legal context surrounding it would have been thoroughly analyzed and just as thoroughly understood. Actually, however, that's not the case. Dr. Neil H. Buchanan and co-author Michael C. Dorf have proposed a "trilemma" analysis of the debt ceiling limit -- a year on from their original law review article it's still unrefuted in the professional literature -- in which if Congress refused to raise the debt ceiling the President must break the law one way or another no matter what he does or doesn't do. It boils down to a question of which law is least offensive when broken. Indeed, if he were smart, the President would just cite Buchanan and Dorf and say that the debt ceiling law is a dead letter, which is something he could (and should) do well before the limit threatens to be imminently breached. In any case, this is cutting edge work that may -- may -- play an important role in the days ahead.

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