Busted: On the Legality of the Debt Ceiling.

More constitution shredding by the Democrats.  They accuse the Republicans of shredding the Constitution on a regular basis but it is they who regularly run afoul of its plain and clear intent.  They do this by selective reading thereof.  Dishonest and self-serving interpretations designed to meet their needs du jour.

The debate over the debt ceiling is no exception.  They are selectively quoting the 14th Amendment to the Constitution to further their own political gains and shredding the Constitutional protections it provides in the process.

Their latest theory seems to be that a single cherry picked phrase from the 14th Amendment somehow gives Obama the power to ignore the law and place himself as the supreme authority over the national coffers.   To wit they cherry pick the following:

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.

So what exactly is the plain meaning of the highlighted phrases?  Simply put, all this says is that there is a national debt and that people cannot simply argue it out of existence.  It simply says that the United States Government is authorized to take on debt to meet it’s obligations.  That’s it.  Period.

This says nothing about who determines when and how much debt can and should be taken on by that government.  The problem here is the Democrat slight of hand which is at play.  Note that no one has questioned the “validity of the public debt“.  No one is arguing that the government cannot take on such debt.  No one is arguing that the debt does not exist.  And most assuredly no one is suggesting that the debt which has already been taken on should not be repaid with full interest.

It is a straw man argument meant to distract honest citizens from the reality of the situation.

So if this passage is not indicating who is in control of what debt is taken on and when, then how are we to know who the Constitution invests that power in?  Well, the Constitution includes a passage to address that very question.  This is a passage that the Democrats are selectively ignoring when they make this argument.  There is a fifth clause to the 14th Amendment which quite clearly addresses this point:

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

This seems quite plain in its meaning.  It is the Congress who is invested with the authority to control the public debt via appropriate legislation.  Legislation like that which establishes the debt ceiling that the Democrats seek to circumvent and whose actions are clearly in conflict with the plain meaning and intent of the text of the 14th Amendment.

Once again we see the Obama Administration for what it clearly is: a rogue and out of control group of Constitution Shredding Cowboys with no respect for the rule of law or for duly authorized Constitutional authority.

It is another shameful day for Democrats.

But it’s not clear that Congress can constitutionally impose a debt ceiling on the President. The debt limit we have now is the legacy of a 1939 law designed to allow the Treasury flexibility to borrow up to a certain limit. But Geithner and a number of constitutional scholars have questioned whether Congress can prevent the president from paying obligations that the government has already incurred. That’s because a passage in the Fourteenth Amendment—designed to prevent Southern politicians from repudiating Civil War debts—stipulates that “The validity of the public debt of the United States, authorized by law… shall not be questioned.” What exactly that means is a complicated legal question, but as Jonathan Chait writes, the clause was intended to prevent politicians from using the threat of default for political leverage—which is exactly what Republicans are doing now.

via Is the Debt Ceiling Legal? | Politeia | Big Think.

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11 Comments on “Busted: On the Legality of the Debt Ceiling.”

  1. John Nail says:

    You present art but not the full argument here.

    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.

    • GoRight says:

      All well an good but quite irrelevant. The President if obligated to respect and defend the Constitution as you say, which invests Congress with the responsibility to manage the public debt via appropriate legislation … including legislation to set a debt limit. The President is also charged with the responsibility to faithfully execute the laws duly enacted by Congress … including the one that establishes the debt limit. None of your argument changes these constraints or obligations on the part of the President. If Congress has enacted contradictory laws it is Congress’ responsibility to resolve the conflict, not the President’s. If Congress has established a self-imposed limit on the amount of the public debt and they have simultaneously created obligations which exceed that limit then they have two potential options to move forward: (1) raise the debt limit, or (2) reduce the obligations. Republicans obviously choose option (2). Democrats obviously choose to ignore the reality of their situation and options, shredding the Constitutional obligations they have been invested with in the process. Democrats refuse to deal with the spending to the point where they are willing to construct self-serving argument which, again, are in conflict with the plain text and meaning of the 14th Amendment.

      • It is clearly not a case of Dems ignoring anything. In fact Cornyn, called it crazy and didn’t address any Constitutional issue. Then he and McCain blinked on the Sunday shows on revenue raises and a short term solution. What changed since last Thursday? Folks looking at this issue.

        No law can trump what the Constitution says and the 14th as clarified by Perry makes it very clear that not completely honoring the laws and obligations they have created, in part or whole, is in violation of the 14th. Perry specifically addresses this as later Congresses cannot ignore or change what is law.

        The R’s pride themselves as strict Constitutional Conservatives and if you really interpret the 14th and Perry as the the specific and only focused case then the solution is clear. The debt ceiling is unconstitutional.

        You can try and kid yourself but Perry clarified it and stands as the precedent here:

        “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.”

        What is not clear here? Constitution trumps any law.

      • GoRight says:

        Constitution trumps law in the sense that Congress cannot simply pass legislation that abolishes the public debt. This is true. This is also the primary source of the Democrat sleight of hand here since no one is seeking to abolish the public debt. The debt exists. The debt is real. The debt is an obligation that is acknowledged directly in the 14th Amendment. All of this is consistent with the decision in Perry. Indeed, this is all the essence of Perry as discussed here.

        But the management of the public debt has been explicitly delegated to Congress and not the President by the 5th section of the 14th Amendment and that provision makes explicit that the means of control shall be laws duly enacted by Congress. Nothing in the 14th Amendment nor the rest of the Constitution that I am aware of allows the President to supersede the authority clearly allocated to Congress with respect to the control of the public debt. The President is clearly delegated to a purely functionary role in this context with no particular authority other than to do the Congress’ bidding with respect to the public debt.

        P.S. Thank you both for your considered responses even though I remain unconvinced.

  2. The debt ceiling is the Congress’ responsibility to pay for what the current and past ones have put into law. Not fulfilling their obligations in total is not an option. Not delays, no deals to pay interest first etc.

    Conflating this with holding the ceiling hostage to a deal is abrogating their Constitutional responsibility.

    Future budgets, reductions et al are not related at all to the current issue. This clearly needs focus but no work any prior administration has ever done has been cut only with no revenue/tax changes. Reagan had 11 tax increases.

    A great deal has been offered already and kyl and Cantor walked out. Boehner is in deep shit now and MCConnell could care less as it will pass the Senate without his team via reconciliation if need be.

    if Congress refuses to meet their obligation to pay for what they have authorized then the President is forced to fulfill his duty to enforce the laws they have passed which includes being sure that there is no default.

    So yes he is functioning in the role he has and has no choice but to be sure that the Constitution is followed, ie debts paid.

    If he doesn’t do this he would be in violation of his duties and oath to “preserve, protect and defend” the Constitution.

    The “threat” to the nation of this standoff also raises the issue of harm to the nation in the same sense a military attack like 9/11 did. That is a whole other less clear Constitutional path.

    If Obama acts and the markets are calm as they likely will be then who is going to sue? What harm is done and to whom when default would cost the nation another recession and tens of billions of dollars?

    R’s can’t win this game which is why Cornyn/McCaiin blinked yesterday.

    A deal will get done because they do not want this to go here as once it is done and ruled on and makes the ceiling unconstitutional further limits the leverage Congress has.

    • GoRight says:

      I don’t dispute that it is Congress’ responsibility to fully fund the obligations that they create. No one is disputing that. But your framing of the situation is clearly flawed. The current Congress is not blindly obligated to fund the obligations of previous Congresses and/or administrations if in their judgement doing so is not in the best interest of the nation.

      The current Congress has both the power and the responsibility to repeal whatever excessive obligations currently exist if they are deemed unaffordable with respect to a responsibly enacted and self-imposed limit on the acquisition of additional public debt. You wish to frame the situation such that there is no ability to cut current obligations, suggesting that once committed to that previous laws cannot be amended or repealed. This is clearly false.

      I do agree with you that inaction on the part of Congress leads to a kind of Constitutional crisis, but one that is of Congress’ own making and one which only they can resolve. The President has no Constitutional role to play other than to execute whatever Congress enacts as a resolution.

      • FYI – great discussion. If we amateurs are doing this imagine what the real pros and scholars are going through. 🙂

        Congress absolutely has to fund what has been enacted into law before unless they pass laws changing things. That is the clear decision in Perry. Absent that prior commitments stand, no question.

        Any changes by 8/2 are unlikely to clear the 2 houses unless a deal is reached.

        The Prez is more than a figurehead for sure. If presented with default the President would have 2 options:
        1) Allow it which is clearly unconstitutional under the 14th, absent Congressional action
        2) Act pursuant to his duty as Chief Executive and or Commander in Chief to fulfilling his oath of office to uphold the Constitution which would trump being left with no action by Congress.

        I don’t think any of us want to see this “nuclear option: and fallout but politically who would win and who would lose? That is why we will see a deal. The R’s have too much to lose both in image and 2012 as well as what if SCOTUS supported the Executive’s action making the debt ceiling illegal? Loss of power.

        Not worth the risk for the R’s. Obama will not let default happen and his ratings are 3x the Congress’ as far as approval goes. The public – esp Independents (all that matter) and the D base will be happy nothing bad happened and blame the R’s for intransigence.

        I suspect we will see a lot of legal beagal detail this week on this which will be fin to see how it mirrors these types of amateur lawyer debates.

  3. azleader says:

    I read Katrina vanden Huevel’s liberal-side opinion piece on this subject in yesterday’s Washington Post.

    Your very, very well thought out article here puts hers to shame.

    I wrote my own response to her WP article today which was influenced by what you wrote here.

    Thanks for writing this insightful article. I see it generated a lot of discussion. 😉

    • Thanks for your nice comments. I hope that we will not get to having this occur but given the option of acting to save the economy and not any President has to act, due to his oath, to act in the good of the nation and many, not the tyranny and talking points of the few.

      • GoRight says:

        Yes, thank you both. I have faith the Congress will hammer out an agreement in time to prevent any serious damage. I suspect that both sides are holding out as long as possible before blinking.

        Personally I believe that both the threat and the anticipated consequences of a “default” of any significance are exaggerated but that is just my opinion. The sky will not fall if the debt limit is not raised by August 2. That’s just Obama hyperbole and scare tactics.

  4. hewmusbkidin says:

    GoR, it’s not just Obama’s beliefs, but the belief of most everyone on Wall Street and around the world. First if downgraded interest rates will really jump causing the debt to worsen, the dollar is really taking a beating over this, sharp declines against other currencies. Not to mention the possibility of a double dip, with an even deeper drop in GDP, job numbers. I enjoyed to back and forth intelligent conversation until you make statements like Obama hyperbole and scare tactics, when in truth it’s of real concern to most experts in the field.
    I would also add that there has been interpretation of the 14th that it’s intent was to avoid just what is taking place in Washington today, making a political football out of the nation’s debt.


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