Chuck Schumer was asked by Brian Beutler whether the debt limit is Constitutional, and he acknowledged that it might not be. But he quickly followed up by saying that it “needs a little more exploration and study,” and that “It’s probably not right to pursue at this point and you wouldn’t want to go ahead and issue the debt and then have the courts reverse it.”

I think it’s clear that the White House – and probably the Democratic leadership in Congress – would rather go the route of a deal than to pull the pin on this Constitutional option. In fact, the President affirmatively wants a deal which provides a lot of deficit reduction, to take the issue “off the table” in the elections. I think that has been made plain. But the question is really not a choice between the Constitutional option and a deal, it’s between the Constitutional option and no deal. If Republicans are so adamantly opposed to any increase in revenues, and Democrats cannot find the votes for all-cuts austerity, including entitlements, at that point you’re at an impasse. And we know the consequences of that impasse, they are dire. So at THAT point, what does the White House do? We know they have a copy of the Constitution; Tim Geithner even helpfully bookmarked the relevant page. There’s an alternative available.

And while Schumer may be right that “you wouldn’t want to go ahead and issue the debt and then have the courts reverse it,” the question becomes who, exactly, would have standing to go to the courts and make that case? Perhaps nobody:

Part of the reason for Zasloff’s difficulty in identifying an appropriate plaintiff is that members of Congress have tried before to sue the president for diminishing their legislative and appropriating power and have typically failed. In 1997, for instance, a small group of congressmen sued Office of Management and Budget director Franklin Raines, arguing that the 1996 Line Item Veto Act diluted their voting power as members of Congress. But seven justices of the Supreme Court disagreed, and did so largely by drawing from an earlier opinion written by Justice Antonin Scalia that denied environmental groups standing to challenge the government’s interpretation of the Endangered Species Act. In the majority opinion, then-Chief Justice William Rehnquist wrote that because the congressmen had not shown that their injury was “particularized,” and that the action of the President had not affected the congressmen in a “personal and individual way,” they did not have standing to sue.

In the case of members of Congress suing the current administration over the debt ceiling, the issue of standing would likely fall the same way. Louis Fisher, an expert on the separation of powers who worked at the Congressional Research Service for over twenty five years, wrote in an email that “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.” A joint resolution from Congress could try to get an injunction from the D.C. District Court to stop the Treasury from issuing new debt, but that could be easily vetoed by Democrats in the Senate.

What Schumer says, that the issue hasn’t been explored enough to deploy this time, perhaps makes sense on some level, in the normal course of events, when a deal is on the horizon. When there’s no deal in sight and the clock is ticking to a default event that Harry Reid believes would create a worldwide depression, I think the niceties of whether or not constitutional scholars have chewed over it enough go out the window.

David Dayen

David Dayen