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Does Obama have the option of deciding the debt ceiling is unconstitutional?

Tim Geithner
REUTERS/Kevin Lamarque
Tim Geithner

If you’re paying about two-thirds attention to the looming — and very, very serious — debt ceiling crisis in Washington, you may have heard some references to a potential magic bullet solution based on language in the 14th Amendment of the U.S. Constitution.

I don’t have a strong conviction on whether this is conceivable, although I’m pretty skeptical. But this debt limit story is getting pretty crazy, so I wouldn’t rule anything out. I can tell you that Sunday on "Meet the Press," Treasury Secretary Tim Geithner  said “there’s no constitutional option” to buy more time after Aug. 2 for the debt ceiling to be raised. But at his “Twitter Town Hall” meeting a week ago — the only time he’s been publicly asked about it idea — President Obama didn’t exactly rule it out. He semi-tweeted:

“There are some people who say that under the Constitution, it's unconstitutional for Congress not to allow Treasury to pay its bills, and are suggesting that this should be challenged under the Constitution. I don't think we should even get to the constitutional issue. Congress has a responsibility to make sure we pay our bills. We've always paid them in the past.”

If, like me when I first starting hearing these references, you are totally clueless, here’s a primer.

The 14th Amendment, adopted right after the Civil War, is mostly famous for (and has had enormous impact because of) inserting the “equal protection” clause into the Constitution and applying it directly to the states, which has become the most influential clause in the whole document over the past century or more. All the famous stuff is in Section 1 of the amendment but, unbeknownst to most of us until the last couple of weeks, section 4 of the amendment says:

“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.”

Given the post-Civil War setting and the direct references to the “insurrection or rebellion” that had just ended, it seems fairly clear that the motivation behind Section 4 was to ensure that money lent to the Confederacy would not be paid back by the United States nor by any of the states and, at the same time, that as the southern states were readmitted to Congress, they could not use their leverage to prevent (or even question) the repayment of debts incurred by the union to put down the rebellion.

Jack Balkin’s blog Balkinization quotes extensively from statements made by the “radical Republican” senators who sponsored and shaped section 4. The statements are consistent with the idea the intent was to guarantee repayment of Civil War debt, but during the drafting of the language it was amended so that — while the Civil War debt is an example of the debt that could not be questioned — the provision clearly applies to the entire public debt of the United States, including government bonds that would be issued after the adoption of the amendment.

Anyway, the key words are in the Constitution: The U.S. debt “shall not be questioned.” Some, like Katrina Vanden Heuvel writing in the Wash Post, believe that the laws creating a “debt ceiling” are themselves unconstitutional because of Amendment XIV, Sec. 4.

(Note that there was no debt ceiling law when the 14th amendment was ratified in 1868. The practice of establishing a ceiling began in 1917 or 1939, depending on which federal law you consider the birth of the debt ceiling.)

President Obama
REUTERS/Jim Young
President Obama

The idea of the president, rather than the Supreme court, deciding which federal laws are unconstitutional should give us all pause, but Vanden Heuvel found a law professor who said that not only is the president empowered to decide which laws are constitutional, but is “bound by oath” not to enforce any laws that he believes violate the Constitution. With Rep. Michele Bachmann running for president as a “constitutional conservative,” I urge caution on this doctrine.

Vanden Heuvel also says that if Obama did try this maneuver, only Congress would have standing to take him to court, and the Dem majority in the Senate would block the suit from being filed.

Personally, I agree with Kevin Drum, writing for Mother Jones, who said that the language “the validity of the public debt of the United States, authorized by law … shall not be questioned” doesn’t mean what Vanden Heuvel and others think it means. Blogged Drum:

“Maybe I'm missing something here, but it strikes me that this doesn't come close to implying that the debt ceiling is unconstitutional. What it really suggests is merely that the public debt is the only untouchable part of the federal budget. The government is required to dedicate its tax revenue first to paying off any debt that's due, but once that's done the Constitution is silent. If the debt ceiling has been reached, and there's not enough money left to issue Social Security checks or buy more aircraft carriers after current debts have been paid, then Social Security checks get reduced and aircraft carriers get put on hold. The constitutional argument for ignoring the debt ceiling would only come into play if for some reason things got to the point where it literally interfered with paying off current bondholders. We're not even within light years of that happening.”

On the other hand, how does Congress get away with blaming Obama for the debt? Congress controls spending and taxing. If we have a debt, it’s because Congress spent too much and/or taxed too little. (In my humble opinion, both.) The debt limit is redundant or, as no less an oracle than Alan Greenspan put it recently on "Meet the Press," it’s like wearing both a belt and suspenders to hold up your pants:

Alan Greenspan
Photo courtesy of Javier Sierra
Alan Greenspan

Greenspan: "I have a more fundamental question. Why do we have a debt limit in the first place ? We appropriate funds, we have tax law, and one reasonably adept at arithmetic can calculate what the debt change is going to be. The Congress and the president have signed legislation predetermining what that number is. Why we need suspenders and belts is something I've never understood.”

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Comments (10)

You wrote, "The idea of the president, rather than the Supreme court, deciding which federal laws are unconstitutional should give us all pause..."

I second your reservations. But, before Marbury v Madison (1803) there were serious discussions about whether Congress or the President had they authority to decide if a law was "legal."

Then John Marshall had his way with the rest of the Court.

I'm no constitutional law expert, but it doesn't seem that the amendment above would apply to the debt ceiling situation and to use it as a wedge to force action would be a bad move by the DFL. We shouldn't have to resort to trickery and nuanced interpretations of the constitution to achieve a simple task like Congress agreeing to pay it's bills.

That said...I think it is criminal for either party to refuse to pay our nation's bills. Let's be clear, this isn't an Obama issue, it's a Congressional issue, spending and taxing are their wheelhouse. What I see happening is a conservative congress holding the country's economy hostage to make Obama look bad to the general public and score a few political points in the coming dung-flinging contest we've come to call an election year. This is unacceptable behavior. Congress...paying the nation's bills is a rudimentary part of your job. Do it. If you feel you've overspent, then spend less next year. Fix it in the budget. Make some compromises. Practice good governance, not idealist political activism.

Compromise is made in the middle, both sides need to give and compromising is a strength of our republic, never a weakness. Do your jobs well for the good of the people, not of your party. America is not a plaything to be used to bolster your campaign.

The mendacity of Republicans is clear in the McConnell proposal. They have multiple unfunded wars, pet projects of unwanted defense projects, unwilling to resume taxing the old and newly wealthy at rates of 10 years ago, but are unwilling to authorize a new debt limit. Instead, they would force the Obama and the Democrats to carry all of the water in raising the limit, so they can continue on their unfiscally sound way to the next election with the big hammer of "they raised the debt limit over our objections".

'Eff them. Shut it down.

Just as there would be more pressure with a "hard" shutdown in Minnesota, there will be more pressure with a "hard" shutdown in the US.

It's time to call their bluff. Let the walls tumble and see the naked ants scramble for cover. Let them explain to their grandmother why social security is not being paid anymore.

Here are some way the President can act. Two under the 14 amendment & two under the Emergency Power or National Security laws

1st way Congress
Congress fails to act by August 2nd 11:59 p.m ET, then the President has the authority to use it to raise the debt celling under the 14th amendment. He or any President would have to do it or could get impeached for not doing it. The key words I am using are "If congress fails to act"

2nd way
This is a little more sticky. He could veto the bill & use the 14th amendment

3rd way
Is temporarily declare a national emergency & using emergency powers to raise the debt ceiling.

4th way
He could raise the debt ceiling under National Security laws.

The basically same congress approved higher limits nine times under the Bush administration remember them, WMDs, two wars and tax breaks for the rich($454 Billion dollars)? The very same party that brought us all down. Now they are rushing in now to take advantage of us and change the entire character of America. It's simply Robinhood in reverse and their is be no happy ending for the common working man and woman or a future for our children or grandchildren if they get their way.

The debt ceiling debate was just another opportunity for them to try to ambush the American people but they got caught, with their pants down.

They have literally fought their way into a burning house.

The American people are smarter than they think. I've got a feeling there's going hell to pay for the conservatives in 2012.

(#4)

Exactly why should Obama act?

Especially when it serves to save the Republicans from having to face the hard facts of governing?

Especially when it provides the biggest hammer for the Republican 2012 presidential and legislative campaigns?

What hope is there if a Republican like Bachmann is elected as president on the back of an unrealistic fiscal policy based on the delusions and machinations of the Koch brothers and abetted by Obama taking the heat for doing the "grownup" thing?

People need to know what they are toying with. It's time for the pretense to end.

(#4) Also, wouldn't the potential unconstitutional and definitely extraordinary actions that you propose just fuel the "fascist / socialist/ Islamosocialist/ anti-American/ hates America" meme that the Republicans have with respect to Obama.

If they want to talk "Constitution", let them live with and die by "Constitution".

Two Grover Norquist utterances quoted by Senator John Marty in his June 28 Apple Pie newsletter illuminate our current unhappy situation:

"Our goal is to inflict pain. It is not good enough to win; it has to be a painful and devastating defeat.... It is like when the king would take his opponent's head and spike it on a pole for everyone to see."

and

"We are trying to change the tones in the state capitals -- and turn them toward bitter nastiness and partisanship."

There's always the Bush administration strategy. Do whatever y ou want. Fight like hell for it. See if you can get away with it.

On the Libyan adventure, the Obama administration hasn't seemed overly concerned with the rule of law.

IMO, the Congress already has approved the required new deficit ceiling--they just do not want to *publicly* admit they did so.

Each and every single bill that became law was vetted and approved by Congress. Thus, they knew the cost. They were already aware of the current costs of the laws *already* passed as well (by previous Congresses). Thus, they knew--and approved--the increase in the deficit ceiling with each and every new (or revised older law) they passed.

Thus, *every* bill has an "understood but unwritten" clause--which is along the lines of

"We, the US Congress, do hereby authorize the needed increase in the US national debt ceiling by the amount required to carry out this new bill should it actually become law."

The act of *officially* passing the debt ceiling increase is merely a summary of what they have actually done--and it smacks them in the face every time they do it. If they won't do it, then it will be done for them. Their time to vote "no" was during the time the bills were being created.