econscius

Good News: No Constitutional Crisis!

In Debt Ceiling, Obama Administration on August 3, 2011 at 7:49 am

In all the punditry about the Debt Ceiling deal becoming law today, one aspect has hardly been commented on.  It is fortunate a Constitutional crisis has been averted!

Some Democrats and liberal writers were recommending President Obama ignore the Debt Ceiling, if a deal was not completed in time, and go ahead with fresh issuance of Treasuries by invoking the 14th Amendment. [1] [2] [3]  What the  14th amendment, Section 4, says (emphasis added):

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.”

The non-partisan Congressional research Service found the 14th Amendment would not allow circumventing the Debt Ceiling. [4]   I am not a lawyer, but my read is the 14th Amendment simply states the public debt of the United States must be honored.   That would mean, in the event the Debt Ceiling was reached, the US Treasury must have paid the maturing public debts in preference before other government payments (e.g. Federal payroll, Social Security, payments to government suppliers, etc.).  The US government collects about $2 trillion in annual revenues and that money would need to go first to paying bondholders.  There is nothing in the amendment’s language suggesting the Executive Branch would have the power to ignore the Congressionally set borrowing limits by issuing new debt above the Debt Ceiling limit.  Absent a Debt Ceiling increase, the government would simply have to pay its debts first, before paying anyone else. 

If no Debt ceiling agreement had been reached and the President had gone ahead and ignored the Debt Ceiling law, it would have been a new and forceful exertion of executive power vis-a-vis the legislature.  The US Congress has always approved the nation’s borrowing.  Loans were individually approved by Congress (e.g. the Panama Canal loan) until WWI, when the borrowing became so frequent that Congress devised the Debt Ceiling to ease the common issuance of debt.  Congress has raised the Debt Ceiling many times hence. 

If the President had unilaterally ignored the Debt Ceiling through the dubious use of the 14th Amendment, it likely would have ended with Articles of Impeachment, court cases and appeals.  It is always possible the Supreme Court could find in favor of the President using the 14th Amendment to bypass Congress and borrow at will.  An Impeachment would be  racially divisive as well as a major national trauma.  Those of us skeptical of executive power have to be pleased a Constitutional Crisis was averted.

[1] http://thehill.com/blogs/blog-briefing-room/news/174321-sen-harkin-nothing-prevents-obama-from-using-14th-amendment

[2] http://thehill.com/homenews/house/174553-congressional-black-caucus-urges-14th-amendment-debt-limit-fix

[3] http://www.politico.com/news/stories/0711/60038.html

[4] http://www.washingtontimes.com/blog/inside-politics/2011/jul/13/crs-obama-14th-amendment-circumvent-debt-limit/

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