“It's time to start getting nervous for real,” said Michael C. Dorf, Robert S. Stevens Professor of Law at Cornell Law School. He was referring to the government shutdown and the approaching October 17 deadline for raising the national debt ceiling.
As the press turned its attention to what might happen if Congress did not raise the ceiling before the government’s borrowing authority ran out, numerous outlets made reference to the scholarship of Dorf and Neil H. Buchanan, professor of law at George Washington University.
During and after the debt ceiling crisis of 2011, Dorf and Buchanan developed an argument, presented in three law review articles (see here, here, and here) and various blog posts, that the President faced a “trilemma” of unconstitutional options: (1) ignoring the debt ceiling and unilaterally issuing bonds, (2) unilaterally raising taxes, or (3) unilaterally cutting spending. They asserted that the President should opt for the “least unconstitutional” course, in this case: (1) ignoring the debt ceiling.
Dorf argues that "if there is a genuine trilemma, then that is all the more reason for the development of a metric for choosing among unconstitutional options. And that's why Professor Buchanan and I tried to develop one before the crisis reoccurred. We built our proposed metric based on the two scant precedents we do have: Lincoln's all-the-laws-but-one speech and the Supreme Court's 1976 opinion in Nebraska Press Ass'n v. Stuart, in which the Court resolved a conflict between a criminal defendant's Sixth Amendment rights and the First Amendment rights of the press."
Dorf and Buchanan have received extensive press interest from their proposal for a solution to the debt-ceiling crisis and have welcomed critique and engagement from the legal and scholarly communities, as well as the government. The latest news and current debate surrounding this proposal can be found at dorfonlaw.org.