What the Fourteenth Amendment Means for the President and the Debt Ceiling

by John Yoo

As the debt-ceiling deadline approaches, liberals are out again suggesting that President Obama may unilaterally raise the borrowing limit of the federal government because of the Fourteenth Amendment. Section 4 of the amendment states: “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.”

I haven’t seen any detailed legal analysis of the original understanding of this Clause, only quick-hit claims in the press that this section would allow the president to raise the debt limit to borrow more money to pay federal debt that is coming due. The constitutional language simply cannot support that leap. It’s as if Obama supporters are 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.

We have to read the Constitution so that all the parts of the text work together. And if there is any core structural feature of the Constitution, it is that only Congress can appropriate and borrow money for the United States. Congress can use this power to undercut the other branches: It does not, for example, have to create or pay for any lower federal courts; it does not have to establish or fund an army. This gives Congress the ultimate check on judicial review or on the president’s commander-in-chief power.

Here, Congress’s Article I power over funding means that we have to read the Fourteenth Amendment’s language that “the validity of the public debt of the United States . . . shall not be questioned” cannot authorize another branch of government to spend or borrow. So what does the clause mean otherwise? It could easily be read to be a rule of priority. If Congress authorizes no more borrowing or taxes, and federal receipts are falling short of federal spending, then the Fourteenth Amendment might require that payments on the federal debt come first before any other programs. This provision is just a constitutional guarantee that the federal government will pay its debts first, before any other obligations or promises.

Faced with this situation, an aggressive president might stop money from the Treasury from going out until the federal debt payments are made. A less aggressive president would accept a complete shutdown and ask Congress to prioritize the spending. Only in the case where all federal spending has stopped, and federal tax revenues still fall short of the debt obligations, might a president arguably have the right to raise revenues — but even then, he might have to sell off federal property, rather than raise taxes himself. As a supporter of an energetic executive, I think these options would go beyond presidential power unless in time of an actual crisis, such as the beginning of the Civil War, when President Lincoln raised money without appropriations, to support the military. 

In this case, once again, Obama is no Lincoln.

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