[Guest post by Matthew Zeitlin]
Ryan Grim has been doing a great job at the Huffington Post tracking how Senate Democrats are starting to consider the constitutional option when it comes to the debt ceiling. The constitutional option, what Chait calls the “Zeitlin Option,” is for Obama to instruct Treasury to ignore the debt ceiling and continue to honor the government’s obligations to creditors and to fund appropriations and entitlements, arguing that the debt ceiling is unconstitutional under the 14th amendment. In a piece from today, Grim writes that Chuck Schumer thinks this option “is a strategy worth considering should a debt-ceiling deal remain elusive.”
Grim then explains the legal issues surrounding a possible suit to stop the President from exceeding the debt limit:
Legal scholars, however, argue that the courts couldn’t get involved because no party would have standing to sue. In order to have standing, a plaintiff needs to demonstrate that they have been harmed. Only Congress would have a plausible complaint, and the Senate would not agree to go along with such a suit.
Individual members of Congress, however, may be able to gain standing and challenge the president. But it is difficult to imagine that the current Supreme Court, one of the most pro-business in the past century, would hand down a ruling that dramatically harms Wall Street.
The first paragraph is right and largely follows what I learned talking to several law professors and experts about the issue. However, Grim’s contention that “Individual members of Congress, however, may be able to gain standing and challenge the president” is off-base. Of course, anything can happen, but it is extremely unlikely that individual members could get standing.
As I discussed in my piece, past attempts by individual members of Congress to argue that an executive action violated their constitutional prerogatives as Congressmen have failed because the Court ruled they lack standing. Louis Fisher, who is perhaps the leading expert of separation of powers, put it very bluntly: “case law is quite clear that a member of Congress, even if joined by a dozen or two colleagues, cannot get standing in court to contest a constitutional issue.”
The biggest risk for exercising the constitutional option remains political; the actual or likely legal barriers to it are almost nonexistent.