General Discussion

of two unconstitutional options. On the one hand, he contends that defaulting on debt would violate the 14th amendment. At the same time, however, he concedes that for the Executive Branch to unilaterally issue new bonds to raise money or to unilaterally raise taxes also would be unconstitutional. But he decides that the principle of "least unconstitutional" option should control the outcome.

But the courts have never, to my knowledge, ever recognized a legal theory based on the "least unconstitutional" outcome. Rather, the courts follow the principle of avoiding constitutional conflicts. Thus, the court would have to find either that defaulting is not a violation of the 14th amendment or that the executive branch can borrow or tax without congressional authority.

Given those two choices, I wouldn't rule out a court finding that the 14th Amendment is limited to situations, such as that in the Perry case, where Congress, after the fact, seeks to invalidate an obligation, rather than where it defaults on the obligation by not making timely payment (but doesn't seek to nullify or otherwise abrogate the obligation for all time).