October 15, 2013
If Treasury Prioritizes Debt Repayments After Reaching The Debt Ceiling, Can Anyone Sue?
Posted by David Zaring

With the possiblity of debt ceiling default arising quarterly these days, it is worth thinking through the Article III consequences of prioritizing debt payments over its other obligations.  Can Treasury do that without facing a ton of big, fat, lawsuits?

Or, to put it another way, why can't it?  As Felix Salmon observes:

[W]hy is Matt Yglesias so convinced that prioritization is impossible? He gives four reasons.

The first is that prioritization is illegal: “Treasury is not authorized to unilaterally decide to pay certain bills and not others”. This is true — but also a bit irrelevant. Treasury is under unambiguous Congressional orders to pay lots of bills — all of them, in fact. If it fails to pay those bills, it will be violating the law as laid down by Congress. Hence the 14th Amendment argument that the president should simply ignore the debt ceiling entirely, if it comes to that. But underneath it all, it’s hard to credit any argument which says “Treasury isn’t allowed to pay its own bonds”. If that’s what Treasury wants to do, then surely it can do so. Besides, who would even have standing to sue?

I can think of some people who would have standing to sue - they would suffer a concrete and particularized injury, caused by the government, and fairly traceable to its actions if Treasury took a dwindling pot of money, and stiffed General Dynamics on contracts due for submarine repair or whatever, while instead paying interest on maturing sovereign debt.  But that doesn't mean that they could sue and win; here, I agree with Felix Salmon.  The courts have found - unless Congress has provided otherwise in its statutory guidance - that managing lump sum budgets is committed to agency discretion by law.  Under the logic of Lincoln v. Vigil, the leading case for this proposition, I accordingly think that lawsuits against Treasury for prioritizing debt repayments would be unlikely to succeed.  As the Supreme Court said then:

an agency's allocation of funds from a lump-sum appropriation requires “a complicated balancing of a number of factors which are peculiarly within its expertise”: whether its “resources are best spent” on one program or another; whether it “is likely to succeed” in fulfilling its statutory mandate; whether a particular program “best fits the agency's overall policies”; and, “indeed, whether the agency has enough resources” to fund a program “at all.” Heckler, 470 U.S., at 831, 105 S.Ct., at 1655. As in Heckler, so here, the “agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities.” Id., at 831–832, 105 S.Ct., at 1656.
Lincoln v. Vigil, 508 U.S. 182, 193, 113 S. Ct. 2024, 2032, 124 L. Ed. 2d 101 (1993)


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