As the federal government once again approaches the debt ceiling, partisans are again pulling out the heavy artillery: Don’t bother negotiating with Republicans on taxes and spending, they tell the President, just declare the debt ceiling in violation of the Fourteenth Amendment and ignore it.
As a matter of law, that gambit is just as wrongheaded as it was when this came up last year. As Heritage explained at the time:
Section four of the Fourteenth Amendment provides, “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 clause simply means that Congress and the President cannot question the validity of debt that is already incurred, but it in no way requires the nation to incur more debt. Even if it precludes temporary default—which is far from clear—it could not authorize the President to incur additional debt.
At most, this clause might require the federal government to prioritize debt payments on existing debt, but no one doubts there is enough tax revenue to cover service on existing debt—without incurring more debt. Besides, the President’s unilateral action to add new debt in violation of a debt limit would not be “authorized by law” and so would be the opposite of what the clause requires.
In addition, unilateral action by the President to take on additional debt would be a clear violation of the Constitution’s separation of powers. After all, the Constitution vests in Congress—and withholds from the Executive—the power to commit to spending, to raise revenue by enacting taxes, and to incur public debt. The Fourteenth Amendment did not alter this. Congressional control of borrowing, through the debt limit, and section four of the amendment are in unison, not tension.
The law here isn’t complicated, and, aside from a few rabid partisans, there’s not even much disagreement on this point. Dean Erwin Chemerinsky, a reliable liberal on most matters, concedes, “there is no plausible way to read this provision [Section 4 of the Fourteenth Amendment] as providing the president the ability to increase the debt ceiling without congressional action.”
Professor Larry Tribe, the constitutional litigator and treatise author who has regularly advised President Obama on matters of constitutional law, agrees, writing, “Nothing in the 14th Amendment or in any other constitutional provision suggests that the president may usurp legislative power to prevent a violation of the Constitution,” including a default.
Add to that list of doubters our Constitutional-Law-Professor-in-Chief: Obama says the Fourteenth Amendment is not “a winning argument.” And the President’s spokesman admits, “There are no tricks, there is no citing of the Constitution that suddenly allow us to borrow.” (Treasury Secretary Tim Geithner, too.)
More than bad law, disregarding the debt policy would be terrible policy. Perhaps the most risible preemptive justification comes from the Jamelle Bouie in The Washington Post, who cites “potential…damage to the economy” from another debt standoff as reason for the President to shrug off the debt limit. But any risk to the economy from a late-in-the-day debt deal would be counterbalanced, and then some, by the massive political, legal, and financial upheaval that would follow exercise of this nuclear option. Even among those who believe the debt-limit mechanism to be sometimes dysfunctional, does any really think that smashing it with a sledgehammer is somehow more responsible than just reaching a deal with Congress?
Tossing the text of the Constitution and centuries of constitutional practice by the wayside isn’t something to be done lightly, and surely not for something so ephemeral as strengthening the President’s “negotiating position” with Congress—which Bouie identifies as his chief object. And judging by their rhetoric—Members of Congress who seek to cut spending are “hostage takers” and worse—others in the smasher camp seem to share his focus on short-term political dividends, while paying little mind to the consequences.
For the sake of our Constitution and our finances, may cooler heads prevail.