In the Debt We Trust: the Unconstitutionality of Defaulting on American Financial Obligations, and the Political Implications of their Perpetual Validity

Starting in August 2011, America has undergone a series of fiscal and political crises surrounding the threat of defaulting on the national debt and the need to raise the debt ceiling. These crises have caused tremendous stress and irreparable harm to our financial markets and political system, causing a downgrade in United States debt for the first time in history, forcing drastic budget cuts, and contributing to a sixteen-day government shutdown this past October. What is most unfortunate, however, is that all of this was preventable for the simple reason that, as a matter of constitutional law, defaulting on the national debt is impossible. This article argues that, because actually defaulting on the national debt is constitutionally impossible, Congress should take this impossibility as axiomatic. Thus, Congress should either: 1) reinstate the “Gephardt Rule” (a procedural rule that was used in prior Congresses to avoid a floor vote to raise the debt ceiling); 2) make the “McConnell Mechanism” permanent; or, ideally, 3) remove the debt ceiling altogether. Doing this would eliminate all future fiscal crises and help restore comity and bipartisan discourse in Congress, while allowing for economic growth and national financial stability