Misunderstanding The Constitutional Option On The Debt Ceiling

By Big Tent Democrat, Section Constitution
Posted on Fri Jul 08, 2011 at 02:48:38 PM EST
Tags: (all tags)

Share This: Digg!

In today's New York Times, Lawrence Tribe misses the mark on the argument about the Fourteenth Amendment's requirement that "The validity of the public debt of the United States, authorized by law, shall not be questioned. Tribe creates a straw man, declaring that "[s]ome have argued that this principle prohibits any government action that “jeopardizes” the validity of the public debt. By increasing the risk of default, they contend, any debt ceiling automatically violates the public debt clause." No one has argued that as a general proposition. The argument is that "public debt authorized by law" may cause the debt ceiling to violate the Fourteenth Amendment, and in those circumstances, the President MAY be empowered to ignore the debt ceiling law.

Jack Balkin explains it best:

In the press and in the public commentary, however, the issue has been repeatedly posed as whether or not the debt ceiling is constitutional under section 4 of the Fourteenth Amendment.

This is the wrong question.

We have had a debt ceiling in this country for a long time. Imposing a ceiling on the amount of debt the United States can take on does not by itself violate the Constitution. Quite the contrary, doing so is an exercise of Congress's powers under Article I, section 8.

Rather, the correct question is whether either the President or Congress, or both, are acting in a way to call the validity of the public debt into question. If they are, then they have a constitutional duty to stop, and take appropriate measures.

[. . .] There is a second question making the rounds, which is equally misleading: People want to know whether the President may threaten to issue new debt if Congress does not raise the debt ceiling.

Again, this the wrong question to ask. [. . .] If Congress refuses to raise the debt ceiling, the President is bound under Article II to take care that the laws are faithfully executed. This duty includes *all* of the laws, including section 4 of the Fourteenth Amendment, the laws passed by Congress that appropriated funds and ordered the President to spend them, and the debt ceiling.

The President (and the Treasury Secretary) must therefore act in such a way as to honor all of these commitments to the greatest extent possible.

That is the point of the Constitutional option with regard to the debt ceiling. Now comes the hard part. Balkin continues:

What I have just said assumes that not every service that the government provides is part of the public debt within the meaning of section 4. Thus, I assume that a government shut-down, in and of itself, need not violate section 4 of the Fourteenth Amendment, if the government does not default or threaten to default on "the public debt," however that is defined.

It is possible that the President and Congress may disagree about what falls within that definition. If so, the President must make the call as best he can, because he has an independent constitutional duty not to violate Section 4 of the Fourteenth Amendment. He does not have to accept Congress's view. He may view the factors that lead to questioning the public debt more broadly than Congress, because he may worry that markets will see the government's operations (and thus its creditworthiness) as interconnected.

THIS is the question. What can the President do to comply as best he can with the 14th Amendment? To me, Balkin goes to far, arguing for emergency powers for the President to "borrow." The Constitution is explicit on this point. The President has no power to borrow on behalf of the country. Only the Congress has such power.

I DO believe the President has the power to decide the priority of payment and to define which obligations constitute "the public debt." I think that is what people are arguing for, not for Presidential borrowing (which is not likely to be very effective anyway.)

Interestingly, there is a device for an executive branch borrowing without legal authority - a moral obligation bond.

Would a "moral obligation bond" be legal for the U.S. Treasury? I think not, but who gets to bring the case?

Speaking for me only

< The Purpose of Criminal Trials | DNA Mixup in Las Vegas: Innocent Man Served 4 Years >

Legal

Nothing on this site should be construed as legal advice. TalkLeft does not give legal advice.

TalkLeft is not responsible for and often disagrees with material posted in the comments section. Read at your own risk.

Misunderstanding The Constitutional Option On The Debt Ceiling | 16 comments (16 topical)

Readers Must Login or Create an Account to Comment

Would that our current Pres., a former (5.00 / 0) (#3)
by oculus on Fri Jul 08, 2011 at 04:06:41 PM EST

Constitutional law professor at one of the most esteemed law schools in the world, would decide to push the envelope and see what happens.

That's something for which (none / 0) (#5)
by observed on Fri Jul 08, 2011 at 05:01:17 PM EST

you'd need the security of being a tenured law professor, and now merely a lecturer.


Please observe. I used small (5.00 / 1) (#6)
by oculus on Fri Jul 08, 2011 at 05:13:27 PM EST

"p."


And I used a small "l"! (none / 0) (#7)
by observed on Fri Jul 08, 2011 at 05:28:12 PM EST

As well as a "now" (none / 0) (#8)
by Peter G on Fri Jul 08, 2011 at 05:29:51 PM EST

for a "not"


In all fairness, didn't the Univ. of Chicago (none / 0) (#10)
by oculus on Fri Jul 08, 2011 at 05:38:04 PM EST

Determine, after the face, Barack Obama was a "professor of law"?


Yes, but as I understand academia (5.00 / 1) (#13)
by gyrfalcon on Sat Jul 09, 2011 at 12:03:04 AM EST

their definition is an aberration.


: With the backdrop of the charges (none / 0) (#15)
by KeysDan on Sat Jul 09, 2011 at 12:16:34 PM EST

that Senator Clinton exaggerated her story of having dodged fire in Bosnia, the Clinton campaign noted that Senator Obama was embellishing his resume by claiming to have been professor of law at UC School of Law.
The School of Law soon after offered a press release that parried the situation by stating that "from 1992 until election to the senate in 2004, Obama served as a professor in the law school. He was lecturer from 1992 to 1996. He was senior lecturer from 1996 to 2004. Senior lecturers are considered to be members of the law school faculty and are regarded as professors, although they are not full time or tenure track. Senior lecturer is distinct from lecturer which signifies adjunct status..."
After further inquiry by Lynn Sweet of the Chicago Sun Times, an Assistant Dean of the School of Law continued the parrying with the statement that Obama served as a professor, but he did not hold the title of professor of law. Obama graduated from Harvard Law in 1991, and it would really be an aberration to be made professor fresh out of law school.

When I was listening to NPR (none / 0) (#14)
by Militarytracy on Sat Jul 09, 2011 at 09:16:42 AM EST

yesterday they decided to read off a short of list of America's top smart colleges. The first was MIT, the second was CalTech...no surprises. I'm pretty sure the University of Chicago was third but it might have been fourth...anywho...with how stupid their economics department has proven to be, hearing where they came in at on a smart list almost caused me to just drive in the ditch and phuck the road :)


: just because you're (none / 0) (#17)
by cpinva on Sat Jul 09, 2011 at 05:27:11 PM EST

overall "smart" doesn't, by definition, mean you're exceptionally "smart" in any one given area. harvard, yale, william & mary, UVA, all "smart" schools. that said, i have had occasion to deal (professionally) with graduates of those schools who just weren't very "smart" in certain concentrations. this is not a slap at the schools in question, simply a fact of life.

Well, it's looking like this option isn't in (5.00 / 1) (#11)
by Anne on Fri Jul 08, 2011 at 06:04:49 PM EST

the cards...

Via David Dayen:

...today the Treasury Department's General Counsel, George Madison, via an email to the New York Times, says that they have no ability to issue debt if Congress doesn't increase the debt limit. This ends speculation that the President could invoke section 4 of the 14th Amendment, and its clause that the public debt "shall not be questioned," as an end run around the whole debt limit situation. Of course, it's become completely clear that the President has no interest in end-running the debt limit vote, but using it as leverage to get major, transformational changes to the scope of government and the future of the social safety net in place.
Here's the email:

To the Editor:
Contrary to Professor Laurence Tribe's assertion (Op-Ed, July 8), Secretary Geithner has never argued that the 14th Amendment to the U.S. Constitution allows the President to disregard the statutory debt limit. As Professor Tribe notes, the Constitution explicitly places the borrowing authority with Congress, not the President.
The Secretary has cited the 14th Amendment's command that "[t]he validity of the public debt of the United States... shall not be questioned" in support of his strong conviction that Congress has an obligation to ensure we are able to honor the obligations of the United States. Like every previous Secretary of the Treasury who has confronted the question, Secretary Geithner has always viewed the debt limit as a binding legal constraint that can only be raised by Congress.

I never believed this would be considered by the White House; they've invested too much time and effort in this phony crisis, and have too many things they want to accomplish by using it as an excuse.

I mean, can you imagine, after all this lecturing about having to live within our means, and how getting control of the debt is the only way to get our economy sound again, that we must all share in the sacrifice and endure the pain, that Obama would announce that, oh, guess what, folks...my bad - I forgot to get someone to check the Constitution, so - neve mind! No crisis after all!

: This IMO is the bottom line (none / 0) (#16)
by MO Blue on Sat Jul 09, 2011 at 02:01:14 PM EST

....the White House; they've invested too much time and effort in this phony crisis, and have too many things they want to accomplish by using it as an excuse.
He needs that phony crisis to rationalize the cuts to SS, Medicare and Medicaid. Cuts that have been on his personal agenda since entered the race for president.

: actually, the way i read (none / 0) (#18)
by cpinva on Sat Jul 09, 2011 at 06:27:08 PM EST

that clause of the 14th amendment, neither the president or congress is required to "raise" the debt ceiling, to be obligated to borrow to make payments. the budget, proposed by the president, approved and voted on by congress, then signed into law, automatically obligates the treasury to do what's necessary to pay those funds.
from that point on, neither congress or the president has any say in the matter.

that's kind of what i was thinking too. (none / 0) (#4)
by cpinva on Fri Jul 08, 2011 at 04:33:52 PM EST

as long as there's a legal budget in place, passed by congress (and there is), it then falls to the president to ensure those authorized funds are used appropriately, regardless of the debt ceiling. if that's not the case, why bother inserting that provision into the 14th amendment to begin with?

i think the republicans will end up being hoist on their own petard (and i actually know what a petard is!), should they push this issue. too much recent history of financial malfactions on their part, that they probably don't want broadcast daily on the national news, should they choose to attempt impeachment, for following the constitution. people would be forced to remember who it was that put us in this hole to begin with.

not the best way to head into the 2012 campaign season.

Seems to me, a government shutdown itself... (none / 0) (#9)
by Dadler on Fri Jul 08, 2011 at 05:36:42 PM EST

...could be argued as a violation of the 1st amendment, as it would not be possible for citizens to petition their government for a redress of grievances.

Good job, BTD, explaining (none / 0) (#12)
by Peter G on Fri Jul 08, 2011 at 10:19:04 PM EST

a very difficult subject and a truly arcane clause of our Constitution.