For some partisans—especially those who believe in the “living Constitution”—the Constitution sanctions all they favor and forbids all they oppose. So it is with the debate over the debt limit.
All of a sudden, politicians who have never cared much for constitutional fidelity are citing a little-known section of the Fourteenth Amendment as grounds for President Obama to evade the congressionally-imposed debt ceiling. Their goal is to punt on spending reductions that would be part of any debt-ceiling deal and are essential to putting the budget in order.
No surprise, their legal arguments are as fast and loose as their irresponsible spending plans.
The Fourteenth Amendment prohibits legislation that repudiates the Nation’s debt. Section four states: “The validity of the public debt of the United States, authorized by law . . . shall not be questioned.” The Supreme Court held that this means “the government is not at liberty to alter or repudiate its obligations.”
But it does not follow that the debt ceiling is unconstitutional. The Fourteenth Amendment does not specify any particular manner by the obligation to honor the Nation’s debt may be met. Congress may, for example, raise taxes, cut spending, redirect appropriated funds, or reduce other payments that are not necessary to satisfy “public debt.” There is no constitutional requirement that it borrow.
Indeed, unilateral action by the President to borrow money would be an unconstitutional usurpation of the legislative power. The Constitution vests the power to “to pay the debts and provide for the common defense and general welfare of the United States” and the power “to borrow money on the credit of the United States” in the Congress, not the President. The President lacks the authority to, on his own accord, make expenditures which have not been authorized by Congress (because Congress has imposed a debt ceiling that supersedes any such authorizations) or to undertake borrowing that has not been authorized by Congress.
Just think for a moment about the argument to the contrary. If the president could borrow on his own accord, notwithstanding a law that sets a debt limit, why couldn’t he simply choose to raise taxes, instead? The answer is the same: that power is vested in Congress, not the president.
In any case, most of the federal budget is not subject to the Fourteenth Amendment. As the Supreme Court has stated, it applies only to payments required to satisfy debts incurred “by virtue of the power to borrow money on the credit of the United States.” The Supreme Court has specifically held that “contractual arrangements, including those to which a sovereign itself is party, remain subject to subsequent legislation by the sovereign”—i.e., the federal government. While the federal government is obliged to make good on its debts, it is not constitutionally committed to carrying out other spending.
So let’s look at the numbers: Expenditures to satisfy the Nation’s “public debt” comprise only a small proportion of total federal spending. Less than ten percent of total federal spending in the President’s 2012 budget would go to satisfying net interest on the national debt, and some additional percentage would go to satisfying other accrued debts. Looked at another way, deficit spending constitutes about 43 cents of every dollar of federal spending. That means, even with no deal to raise the debt ceiling, 57 cents of spending on the dollar could continue unimpeded. In other words, the federal government would have to live within its means.
The bottom line is that section four of the Fourteenth Amendment is a limit on Congress’s power to repudiate the Nation’s debt, and not (almost literally) a blank check for the President. Fair-weather constitutionalists take note: sometimes the Constitution doesn’t get you where you want to go.
