Desperate times call for desperate ideas. Some folks are now arguing that section 4 of the 14th Amendment, stating that “[t]he validity of the public debt of the United States, authorized by law…shall not be questioned,” gives the President executive authority to act unilaterally in raising the debt ceiling. Not knowing what to think when I first heard this idea from a friend today, I did my best impersonation of a real scholar (i.e., I took to the intertoobz). It didn’t take long to find the answer, and the answer is unequivocally, “NO.”
First, the background. Here’s the full version of section 4:
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.”
That section of the 14th Amendment was intended to ensure a) that if post-Civil War southerners took control of Congress they wouldn’t repudiate the debt incurred in the process of kicking their asses,* nor try to cover the south’s costs of trying to break away.*
But as legal philosopher Ronald Dworkin** notes in his pro-executive power argument, we don’t interpret the Constitution just by the case that stimulated an amendment, but by the general principles embodied by its clauses. And so he argues the 14th Amendment does confer an executive power to ensure we make our debt payments, and that Congress is acting unconstitutionally by causing the debt not to be paid.
The general contours of that fundamental principle seem clear enough. Congress does not have authority, even by a substantial majority, to dishonor the nation by repudiating outstanding debts it has authorized the nation to incur. The fiscal integrity of the United States is sacred and requires constitutional protection…
[T]he Republican majority in the House now refuses to permit the country to meet debts duly authorized in the past that remain duly authorized now, unless the Democrats and the President agree to a radical reduction in essential public services that they would never otherwise accept. That is playing blackmail with the nation’s honor. It threatens exactly the kind of forced default that the principle behind the debt clause declares it has no authority to inflict. I believe the best, principled, interpretation of the clause gives the president authority to ignore that blackmail and to borrow enough to meet the nation’s standing legal obligations.
This argument is pretty weak, constitutionally. First, even if the Constitution absolutely requires the ensurance of the fiscal integrity of the United States, nothing in that section references the President even by the most vague allusion. Maybe our fiscal integrity is constitutionally sacred, but nothing says that the responsibility or authority for it fall to the executive.
Second, even if the fiscal integrity of the country is constitutionally sacred and the authority to ensure that is an executive power, the President has a clear path toward accomplishing that without overriding Congress; he can accede to their terms. Sure they’re blackmailing him legislatively, but the Constitution does not prohibit hardball politics. So Dworkin is arguing that the Constitution gives the President to ignore statutes if Congress digs in its heels and a constitutional violation looms? That’s a fairly novel legal argument, I believe.
And here’s what’s missing from Dworkin’s argument–any actual reference to well-established principles of constitutional analysis, or reference to any other relevant aspects of the Constitution itself.
Contrast that with the Con argument of another American legal giant, Erwin Chemerinsky.***
Unfortunately, there is no plausible way to read this provision as providing the president the ability to increase the debt ceiling without congressional action.
Article I, Section 8 of the Constitution says that it is Congress that has the power “to borrow money on the credit of the United States.” The Constitution thus could not be clearer that borrowing money requires congressional action. Nothing in Section 4 of the 14th Amendment takes this power away from Congress or assigns it to the president…
The power of the purse — including the authority to tax, spend and borrow — is quintessentially legislative. Not even a dire financial emergency would allow the president to take this over. The Constitution, thankfully, has no provision allowing for its suspension even in times of crisis.
Moreover, the debt ceiling is set by statute. Unless this law is unconstitutional, which it obviously isn’t, the president cannot unilaterally repeal it and replace it with another law setting a higher debt ceiling.
Historical practice also matters in interpreting the Constitution. On many occasions, the Supreme Court has said that a long, unbroken tradition is given great weight in determining the Constitution’s meaning. As the court often has said, “History has placed a gloss on the Constitution.” Throughout American history, the debt ceiling always has been set and raised by statute, not executive decision-making.
I think that’s game, set, and match. If I was Obama’s legal counsel, one of these arguments would have me sweating bullets before the Supreme Court, while the other would have me enthusiastically bouncing up the steps of the Marble Temple.
From a pure political perspective, however, if I were the President I’d be tempted to do it unilaterally anyway, if necessary. I’d just order the Secretary of the Treasury to continue offering securities and tell the country I regretted having to act unilaterally, but a tiny group of crazes lunatics was holding Congress and the Country hostage. Some Republicans have already threatened to impeach him if he does, but how serious is that threat? If, and it’s a big if, the Republicans in the House could actually pass a bill of impeachment (it would take 218 of the 242 Republicans in the House), the Senate wouldn’t conceivably convict. And the public relations loss would be every bit as bad as with the Clinton impeachment. I had a third-grade teacher who used to say, “thirty lashes with a wet noodle.” That just made us giggle, but it was still more frightening than this presumptive threat of impeachment.
* With the benefit of knowing how the south has turned out a century and a half later, I come more and more to think the money spend on keeping them in the union was a classic government boondoggle. Instead of spending that money on keeping them in the union, we would have better spent it on helping them go away. Think of what a lovely border fence we could have built along the Mason-Dixon line for the cost of the war, or how many slaves we could have bought (or simply rescued surreptitiously) and set free. This rough estimate suggests that would have been far more cost-effective. It appears the south had $4 billion worth of slaves. Sure, prices would have risen dramatically as the southern supply dwindled, but considering all the lives saved, the savings from not disrupting the economy by taking over 3 1/2 million men out of the labor force, etc., etc. Sure, the north would have faced some economic disruption from adding a couple million mostly unskilled laborers (counting only the men, and assuming they were roughly half the slave population). The biggest cost would probably have been increased racial tensions in the north, but we would have been rid of the south! That’s of incalculable value.
** Author of the vastly influential Taking Rights Seriously. His argument here has nothing to do with rights, but Dworkin’s no simplistic foil. He’s a giant in the legal field.
*** Perhaps best-known for his outstanding critical assessment of the Supreme Court in the Reagan era, “The Vanishing Constitution.”