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.)
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:
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.”