U.S. Appellate Court Judge Richard Posner weighs in Monday morning with a blog post on the approaching crisis over raising the federal debt ceiling. Posner, long associated with conservative and neo-conservative economic positions, has come down firmly against the Republican position that raising the debt ceiling must be tied to new cuts in spending, particularly a so-called defunding of the Affordable Care Act, aka Obamacare.

Posner writes:

[A] debt ceiling is unlikely to reduce the size of government. But it is pernicious, in inviting political tactics that could well be thought to violate the Constitution, or at least the spirit of the Constitution. … The Republican preoccupation with Obamacare is thus rather surprising, but may reflect a fear that when once Obamacare is debugged and up and running it will prove popular, which will boost the Democrats. Yet the Republicans are not in a position to repeal or even amend the law by constitutionally authorized means, because repeal or amendment would require a majority vote in both houses of Congress. … The intention, which is contrary to the structure of the federal legislative process ordained by the Constitution, is to coerce Congress to repeal (or by amendments to defang) Obamacare by threatening to precipitate an economic crisis by refusing to vote for an increase in the debt ceiling. If the tactic succeeded, it would mean that a minority in Congress had succeeded in amending a federal statute.

Posner’s argument may offer the Obama administration a way to test the constitutionality of the threat to a U.S. default on its debt payments. Of course that can only happen once the government has been forced to default. Not a pretty picture.

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