Lo and behold! As we celebrated this Fourth of July amid the debt-ceiling fight, the netroots and progressive pundits suddenly discovered the Constitution’s relevance in fiscal matters. It doesn’t seem like that long ago — because it wasn’t that long ago — that they ridiculed the very idea of constitutional limits on Congress in economic policymaking, and even mocked the GOP’s public reading of the Constitution at the beginning of the current session.
Of the new House rule requiring a statement of the constitutional authority for bills, Ian Millhiser wrote at ThinkProgress that “the constitutional lunatics are now in charge of the GOP’s asylum.” It was completely unnecessary for Congress to cite constitutional justification for its actions, Millhiser proclaimed, because “Article I of the Constitution gives Congress broad authority” and “leaves budgeting decisions almost entirely to the judgment of Congress.”
Advertisement
But now that the GOP Congress is exercising this “broad authority” — or rather, what has always been its basic authority — over the nation’s purse strings to press for spending cuts as a condition of hiking the $14 trillion debt ceiling by another trillion or so, Millhiser, the Huffington Post, and The New Republic have suddenly discovered that in at least this one instance, the Constitution supposedly limits Congress’s economic powers. Section 4 of the 14th Amendment, which states that “the validity of the public debt of the United States, authorized by law . . . shall not be questioned,” makes the debt ceiling itself unconstitutional, their argument goes. Folks who were railing against the “unitary executive” a few years ago now argue that if Congress doesn’t give Obama what he wants, this section gives him the constitutional authority to issue new debt by himself; otherwise, there would not be enough money to pay the existing debt, and the 14th Amendment does not allow that.
Just a few months after arguing majestically about how the Constitution puts virtually no limits on the “judgment of Congress,” Millhiser now hopes the White House begins “seriously exploring whether the Constitution will save America’s economy from the GOP’s extortionary tactics.” And David Dayen of FireDogLake, who thought it was “silliness” for members of Congress to read the Constitution in its entirety at the start of the session, now thinks it’s okay to read this one little section. He urges Democrats to stop tussling with Republicans over spending and taxes and just go with “a strategy that works: reading the Constitution.”
But this tortured interpretation of the 14th Amendment actually shows why members of Congress — as well as the pundit class — should have participated in the public reading of the entire Constitution earlier this year. If they had done that, they might not have skipped over an essential passage regarding the power to borrow. Article I, Section 8 — the same part of the Constitution that gives Congress the power to tax, appropriate, and “regulate commerce . . . among the states” (long the Left’s justification for any regulation of activity, or in the case of Obamacare, the inactivity of not buying health insurance) — also explicitly states: “The Congress shall have power to . . . borrow money on the credit of the United States.”
The 14th Amendment doesn’t affect this power one bit. It applies only to debt “authorized by law,” and as Catholic University Law School distinguished scholar John S. Baker wrote recently in NRO, “Only Congress — not the president — makes law.”
What it perhaps does do — based on one Supreme Court case — is require the Treasury Department to prioritize payment of existing debt to bondholders over other spending in the event the debt ceiling isn’t raised. So if the government finds itself short on cash, it has to keep paying the bondholders and find the necessary savings in some other part of the budget. This is exactly what conservatives like Sen. Pat Toomey (R., Pa.) have been trying to codify through legislation. As Michael McConnell, the distinguished director of the Stanford Constitutional Law Center, has put it, “the real effect of Section Four of the Fourteenth Amendment is almost the opposite of what hopeful voices in Washington are saying.”
Ironically, proposals for personal accounts championed by center-right groups would give recipients a contractual interest in some of the taxes they pay,
--
If this crisis does result in the govt skipping or curtailing SS checks, there are more than a few left wing faces that I am going to rub this fact into.
If SS payments or military wages are suspended as a result of the debt ceiling problem, it is directly the result of a political decision by the Obama administration.
Republicans should introduce legislation to sequester those funds so that they may only be used to make the prerequisite payments.
The RNC should have adds running two weeks before the deadline pointing out the amount of cash available after paying interest on the debt and also asking people to call the White House an tell the President not to play politics with our military or pensioners.
Yep, just run some ads. I'm sure the country/world would then believe you if the country/world economy was severely impacted by a debt-limit caused default. Don't worry, I'm sure they'll blame it on Obama, because he's the one clearly gunning for default.
that's exactly how social security was supposed to work- until greedy politicians put their grubby hands in the till. right now, the government owes social security over $3trillion.
What exactly is the alternative? If the President can't unilaterally raise the debt limit and Congress does not, than where exactly is the money supposed to come from?
Do we save pensioners by screwing federal employees, or save soldiers by kicking old people and children out of hospitals?
The one good idea would be to at least take Congressmen's pay first (completely insignificant as it would be), but the fact remains it has to come from someone.
Here is the problem with raising taxes on the "rich", first of all companies like General Electric did not pay one penny in taxes in this country, and they shifted their profits over seas and pay a lesser rate for labour. Second, Warren Buffet talks about how he would welcome paying more and higher taxes, if so, he could simply write a check, but will not do it voluntarily. He should keep his trap shut.
In the 1920's people who had $5 Million were cosidered "rich" to the Federal Government. Today, in 2011, from Obama's mouth, that number is $107,000. Why? Because the government spends too much and they have to go deeper in the wel to raise taxes. Big Government does one thing, creates more poverty, consumes to much, so they need more money to help those in poverty they put there.
Here is the biggest reasons taxing will not work, you could confiscate all of the wealth in the country today, and still will not be able to offset government spending. The credit card is maxed out and raising the limit will not do any good.
It is time for our government to practice what it preaches to the citizens of America, they need to share in the sacrifice. Cut the many outdated, and duplicate agencies, and departments. Start there first and foremost before you try to pick my pocket first. Lead by example and make cuts like we the people have had to do.
"The basis of our political system is the right of the people to make and to alter their constitutions of government." George Washington
So, now they are arguing in the open -- well, in their shared enclaves, anyway -- that Obama has unilateral authority to authorize more spending.
This is why socialists cannot be reasoned with. First, they actually advocate despotism, and call themselves "progressive" and "Democratic".
Then, with the document that serves as the only source of legitimacy for federal power, they will argue LITERALLY anything. They are like toddlers in a sandbox talking about how great their parents are.
It matters not whether they have to completely torture the English language to make their arguments, or torture the history and tradition of the nation's understanding of those clauses.
Any cost to their intellectual reputation is worth it to advance their socialist agenda, even if today they must argue against what they said last week.
There is much to admire in Mr. Berlau's piece, but he assumes the Left is willing to be constrained by rule of law--albeit under a "tortured interpretation." I'd welcome evidence of that, but it seems they've been arguing in the open and in bad faith--forever.
The Right insists on the centrality of the role of reason in human affairs while admitting the fallibility of reason. Use reason to defend reason. This is the opposite of ideological.
The Left takes the fallibility of reason as evidence that human affairs, ultimately, are governed by relations of power, not reason. Deny reason (usually implicitly) so blithe self-contradiction isn't a problem, then do what seems necessary with a clear conscience (not there is such a thing). This is nihilism and (sometimes self-consciously) ideological all the way down.
The Right sees the rule of law as the best possible arrangement--people being what they are. The Left sees the rule of law as an impediment.
Yes the left's arguments are ridiculous, as is the left itself really. But the fact that their deconstructionists are engaged in their usual ridiculous spin means something.
It means they are going to ignore the law and borrow whatever they please.
Yes that's illegal. As though the left has ever treated law as anything but optional for them, and binding only on their opponents.
What are you going to do about it?
The senate will shoot down anything congress as a body tries to do about it, so the answer is "not much".
“What it perhaps does do — based on one Supreme Court case — is require the Treasury Department to prioritize payment of existing debt to bondholders over other spending in the event the debt ceiling isn’t raised. So if the government finds itself short on cash, it has to keep paying the bondholders and find the necessary savings in some other part of the budget.”
Aren’t we all pretty clear on BHO’s attitude toward paying bondholders first? Or at all? Ask any GM “pennies on the dollar” bondholder. What is China thinking?
“Millhiser, the Huffington Post, and The New Republic have suddenly discovered that in at least this one instance, the Constitution supposedly limits Congress’s economic powers. Section 4 of the 14th Amendment, which states that “the validity of the public debt of the United States, authorized by law . . . shall not be questioned,” makes the debt ceiling itself unconstitutional, their argument goes.”
This administration treats our constitution as though it were a piñata. If it is beaten and mangled long enough all of the goodies will fall out, THEN it can be thrown away.
Awesome article, thanks. Madisonian you are 'spot on'; we JUST celebrated our independence from despotism (the declaration is pretty clear about that)! One of the things that makes our country great is the separation of power--and oh boy do we need congress to (cross) check this president and provide some balance.
How the does the "validity of Public Debt" imply raising the debt ceiling? I just thought it meant the validity of CURRENT public debt, not a carte blanche to increase the debt ad infinitum, simply referring to it as "public debt".
Also, regardless of games of this junta in charge, the very same amendment says that it's Congress that enforces this, NOT the president.
Maybe the GOP should refer to the 8th amendment and the idea that "excessive fines" (in the form of taxation due to regulation) have been imposed.
I think someone needs to address the fact that the Treasury has some 467 billion dollars in debt to rollover in the month of August with only about 200 billion projected to be collected. If they can't issue new debt then those billions become due next month and we do default because we wouldn't collect enough in that month to cover our current obligations, never mind almost 500 billion in debt that can't be rolled over and must be paid.
I suspect that Section 4 of the 14th Amendment was added in the aftermath of the Civil War as a means to settle debts between the federal government and the rebellious states, nothing more. It's in the same vein as the Citizenship Clause (Section 1), which was meant to apply only to former slaves, who were previously not considered citizens. These were one-time adjustments, and have now outlived their usefulness.
The part that says"by law" should let this administration know that the only part the president plays is either signing it into law or vetoing it.
And he(mr. President) used to be a constitutional law teacher. Really?
