NATIONAL REVIEW ONLINE
October 7, 2013 4:00 AM
The 14th Amendment and the Debt Ceiling
Obama doesn’t have the authority to step in, but who would stop him?
By Charles C. W. Cooke
As we move slowly toward the still-slim possibility of default, we find ourselves in a peculiar predicament. Once again, we are being treated to the novel suggestion that, in the unlikely event that Congress refuses to raise the debt limit, the president should step in and act unilaterally. And, once again, the president is refusing to entertain the idea.
On the surface this seems to buck the conventional wisdom. One would expect the chief executive to be proposing this idea over the screaming opposition of Congress. But the tables are turned. “I have talked to my lawyers,” Barack Obama said calmly in 2011, and “they are not persuaded that that is a winning argument.”
This position apparently remains unchanged. In December of 2012, Jay Carney confirmed to reporters that the White House “does not believe that the 14th Amendment gives the president the power to ignore the debt ceiling — period.” As recently as last month, National Economic Council director Gene Sperling explained that the administration has “never found that there was such extraordinary authority.”
Members of Congress, meanwhile, seem to be thrilled by the idea of having their roles usurped. “I think the 14th Amendment covers it,” a blasé Nancy Pelosi told reporters in late September. “The president and I have a disagreement in that regard, I guess!” In 2011, Harry Reid made it clear that he has a “disagreement,” too. “We believe you must be willing to take any lawful steps to ensure that America does not break its promises and trigger a global economic crisis,” Reid wrote — and “without congressional approval, if necessary.” Among a host of other members of Congress who think that the 14th Amendment is “an option that should seriously be considered” is retiring Senate Finance Committee chairman Max Baucus.
Given this president’s shaky commitment to the constitutional limits on his power, it is difficult to believe that he is here demonstrating a virtuous restraint. Instead, one suspects, he is playing political hardball, adding publicly to the sense that the stakes are real and lending credibility to the suspicion that a grave crisis is brewing. After all, to imply that he could just step in if necessary would be to take the pressure off Congress.
Nevertheless, whether or not he actually believes his own words, the president is right to demur. For a start, the proposed 14th Amendment solution is simply never going to happen. In order to mitigate the serious risk of the Supreme Court’s simply invalidating all presidentially blessed debt, the interest rate on any extra-constitutional bonds would have to be unreasonably high, as the American Enterprise Institute’s Peter Wallison has observed. Moreover, Wallison writes, “the yield on all US government debt would probably rise after the issuance of a questionable debt instrument, as investors began to doubt the sanity of those in charge at the Treasury.”
Legally speaking, too, the theory is nonsensical, belonging as it does to the same anachronistic and unlettered school of constitutional interpretation that has led to the laughable suggestions that a “general welfare” line written in the late 18th century was intended to refer to New Deal–era redistributionary transfer payments, and that the “militia” clause in the Second Amendment (1791) refers to the National Guard (established in 1903).
The constitutional scholar John Yoo, who is usually expansive in his conception of executive power, has observed that most advocates appear to be reading the document without any reference to the general understanding of the time in which it was written. It is, Yoo argues, “as if Obama supporters [were] reading the text of Article IV, which says that the United States shall protect the states from ‘domestic violence,’ and concluding that the federal government can prevent spousal abuse.”
The idea that the president possesses the authority to raise the debt limit ultimately comes from an expansive and inventive reading of the 14th Amendment’s fourth section, which holds that “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.”
This provision, written during Reconstruction in 1868, was contrived primarily to ensure that the North’s Civil War debts were not repudiated by the national government, and it stands in stark contrast to the latter part of Section 4, which makes it clear that the United States is by no means expected to pay any debt incurred in pursuit of the Confederates’ cause.
In a minor federal case from 1935, Perry v. United States, the Supreme Court ruled that the amendment “indicates a broader connotation” and thus applies to all federal liabilities — although justices notably declined to define more precisely what is covered by the term “debt.”
From this, Nancy Pelosi and her acolytes have somehow managed to conclude that because it is illegal for the United States to walk away from its obligations, a congressionally determined debt ceiling is in and of itself unconstitutional. This view is insupportable.
Unfashionable as it has become to remember in the Age of Obama, there is no doubt that the Constitution allows only the legislative branch to appropriate and to borrow money, arming Congress with what James Madison called in Federalist No. 58 “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.” So powerful is this tool that the legislative branch may effectively stop all executive and bureaucratic action simply by refusing to allocate funds.
To argue that a tenuous reading of the 14th Amendment trumps the fundamental structure of the Constitution is akin to arguing that Congress could take over the role of commander-in-chief if the president refused to defend the country, on the grounds that Article 1, Section 8, Clause 11 awards the legislature the power “to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”
Harvard Law’s Laurence Tribe has correctly and drily pushed back against such silliness, asking rhetorically in what other areas it would be appropriate to “usurp legislative power to prevent a violation of the Constitution.” “In theory,” Tribe notes, “Congress could pay debts not only by borrowing more money, but also by exercising its powers to impose taxes, to coin money or to sell federal property. If the president could usurp the congressional power to borrow, what would stop him from taking over all these other powers, as well?”
It is telling that the most convincing argument that advocates of executive usurpation can muster will sound eerily familiar to anyone who has been watching the Obama administration unilaterally ignore both Obamacare’s defined timetable and the nation’s immigration laws: “Okay, but who is going to stop him?”
Alas, this is a fair question. Should Obama eventually decide that he concurs with Pelosi and Co., it would prove difficult for anybody to do much about it. The trouble in such a case would be determining who exactly has standing to bring a lawsuit. Individual members of Congress, perhaps? Or the House? Well, no, not if 1997’s Raines v. Byrd is any indication. Individual taxpayers? Bondholders? Again, no, not if 1935’s Perry v. United States is anything to go by. And, given Harry Reid’s stated preference that Obama act without Congress, both a joint resolution and any attempt at impeachment would probably be impossible.
Prior to 1917, it was necessary for Congress to vote to authorize each and every instance of federal borrowing. The Second Liberty Bond Act of 1917 changed all that, allowing the Treasury Department greater flexibility and involving Congress only when a statutorily set debt limit was reached. While this changed the way in which borrowing worked, it did not change the structure of America’s government, in which Congress enjoys primary control over all matters legislative and fiscal.
Critics of our current impasse are right when they say that allowing a default would be disastrous. But they are quite wrong when they imply that this serves as a justification for extraordinary measures. To contend that Congress has the power to control the debt ceiling until such time as it uses that power irresponsibly is to contend that Congress does not actually enjoy control over the issue at all.
The legislative branch, Article I makes clear, has the responsibility to look after the purse. That means for better, for worse, for richer, for poorer, in sickness and in health — and even, yes, when it threatens to cause a national crisis.