A debt-ceiling trial balloon that will not float

Some Democratic senators are pitching the idea that the debt ceiling itself is unconstitutional, that it violates the 14th Amendment, and that if a deal on raising the debt limit is not reached by Aug. 2, President Barack Obama could keep spending, meet deficit obligations, and ignore howls of protest from GOPers in Congress. … It’s a bad idea that would actually be a gift to opposition Republicans, backfire badly on the White House, and reinforce the stereotype of Democrats as tax-and-spenders.

Some of the Democrats in the Senate musing over the idea are Chris Coons, of Delaware, Patty Murray, of Washington, and most signifanctly, Chuck Schumer, of New York. They point to these words in the amendment: “The validity of the public debt of the United States, authorized by law … shall not be questioned.” Coons, talking to the Huffington Post, candidly wonders if Congress can even legally “default.” (Read)

If we could afford it, it would be an interesting legal question as to whether meeting past debt or future spending is the lawful priority of Congress, but this would be a public relations disaster for Democrats. The most obvious rebuttal  — and one that would resonate with the public – is that Democrats themselves have voted, albeit in a secure minority, against raising the debt. Such a ”conversion” toward constitutional appropriateness would be seen as more cynicism.

Second, this is a really bad time to try to find a loophole to avoid responsibility for federal debt spending that is truly astounding, $14-plus trillion and moving quickly upward. Distrust of politics, and pols, is at perhaps its highest ever. Any attempt to avoid debt responsibilities with a “14th Amendment explanation” would only add to the distrust.

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4 Responses to A debt-ceiling trial balloon that will not float

  1. craig41 says:

    the 14th amendment explanation would allow the treasury to continue paying it’s obligations as outlined in the current and past budgets. conflating that with reducing the debt/deficit is nothing more than a shell game played by those who are trying to score political points.

    if a debate on spending levels to reduce the debt/deficit is desired, that should be done in the budget bill negotiations, not the debt ceiling bills (which as you’ve pointed out here may not have much constitutional relevancy). i apply that argument to both sides, those wanting to cut spending and those wanting to raise taxes. now isn’t the time for it, save those talks for the budget bill, anything more is a form of campaigning through legislation.

  2. John N says:

    I am going to approach this Constitutional debate from another angle. That President Obama would risk impeachment by NOT acting under the 14th Amendment to prevent default.

    Whether any of us like it or not it this debt ceiling debate is all about the “obligations” that Congress over time has signed into law, not the bonds.

    The ceiling raise has nothing to do with future spending, only that which has already been committed to by this and prior sessions of Congress over out history.

    We elected them, they act via their Constitutional responsibility passes laws/funding programs, we own it and has the “full faith and credit” of the US behind it. These are all laws that then need to be upheld, ie honored.

    The Constitution is by definition the original document plus any and all Amendments to it so trying to separate the two is a specious argument as well.

    In PERRY V. UNITED STATES, 294 U. S. 330 (1935)SCOTUS addreses the larger context of debt as “obligations” that further supports the notion that default would be unconstitutional and thus stopping it would be required of the President:

    “…The government’s contention thus raises a question of far greater importance than the particular claim of the plaintiff. On that reasoning, if the terms of the government’s bond as to the standard of payment can be repudiated, it inevitably follows that the obligation as to the amount to be paid may also be repudiated. The contention necessarily imports that the Congress can disregard the obligations of the government at its discretion, and that, when the government borrows money, the credit of the United States is an illusory pledge.

    We do not so read the Constitution….To say that the Congress may withdraw or ignore that pledge is to assume that the Constitution contemplates a vain promise; a pledge having no other sanction than the pleasure and convenience of the pledgor. This Court has given no sanction to such a conception of the obligations of our government.

    The Fourteenth Amendment, in its fourth section, explicitly declares: ‘The validity of the public debt of the United States, authorized by law, * * * shall not be questioned.’ While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the Civil War, its language indicates a broader connotation. We regard it as confirmatory of a fundamental principle which applies as well to the government bonds in question, and to others duly authorized by the Congress, as to those issued before the amendment was adopted. Nor can we perceive any reason for not considering the expression ‘the validity of the public debt’ as embracing whatever concerns the integrity of the public obligations.”

    The office of the President as “Chief Executive” is empowered by the Constitution that “he shall take Care that the Laws be faithfully executed”.

    He is also Constitutionally bound by his oath of office:

    “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

    This creates a slippery slope for any President. In other words he has no choice in acting per the Constitution lest he violate his oath and for that could be subject to impeachment.

    A secondary argument, slightly less compelling, is that in his job as Commander in Chief to protect the nation against any threats could be cited here. A default that plunges the nation into another recession and costs the taxpayers hundreds of billions in additional Federal interest payments and billions more in higher credit card, mortgage and consumer loans threatens the nation as much as any war or attack does. Not acting would weaken the nation considerably and his failure to protect the nation from this sort of “attack” would also be seen as a failure to fulfill his oath.

    So the 14th/PERRY V. UNITED STATES makes it clear on the debt’s validity and the fact that it cannot be abrogated in anyway that diminishes the full faith and credit of the nation and its trust with any one owed money via a statute approved by Congress, be it your mom on SS, a cleaning contractor for a federal building or foreign nations holding bonds. All are equally valid and must be honored.

    So no action by Congress is illegal and the Debt Ceiling law in any dispute is trumped by the Constitution. In “Perry” Chief Justice Hughes wrote the majority opinion: “We do not so read the Constitution…the Congress has not been vested with authority to alter or destroy those obligations.”

    Altering those obligations means that the terms of meeting them cannot be changed in anyway so even a default of a few days or a program to pay bills in some order with revenues is not allowed. So inaction that allows any sort of modification is out of the question as well.

    If Obama does not act to avert the crisis if negotiations fail that is a more compelling reason to Impeach than trying to claim that he exceeds his Constitutional power in resolving the crisis using the 14th.

  3. Doug Gibson says:

    I think you make a good point that the budget bill is a more appropriate time for talking about spending levels. as the deadline ticks to Aug. 2, the pandering to interest groups by both parties can’t help matters.

  4. Midwinter says:

    Here’s an interesting history of the debt ceiling.

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