Eric Posner Argues that President Can Exceed Debt Ceiling without Congressional Approval

Emergency Powers Let the President Borrow
Eric Posner
New York Times
October 2, 2013

“Constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. Nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. There ought to be a capacity to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity.”

So wrote Alexander Hamilton, in the Federalist Papers. He was expressing a concern about liberal constitutionalism that its earliest defenders acknowledged: that because threats to the well-being of the public are by their nature unpredictable, it is impossible to provide for them comprehensively in a written Constitution.

Hamilton, like Locke and others before him, believed that ultimately the executive in a liberal constitutional system must have a power — sometimes, called the “prerogative” — to act unilaterally to address serious unanticipated threats to public well-being.

Eric Posner