Bench Memos

Contra Wilentz: The Fourteenth Amendment Constrains Presidents

Princeton historian Sean Wilentz has a somewhat overheated op-ed in the New York Times today, arguing that the Fourteenth Amendment’s provision on the public debt somehow authorizes President Obama to take “emergency” steps of his own in the event of a default if the debt ceiling is not raised.

Except that Wilentz acknowledges that the amendment itself “does not give the president the power to raise the debt limit summarily.”  So what exactly is Wilentz arguing?

Taking a hyper-Lincolnian view of emergency powers, coupled with a downright un-Lincolnian vagueness about the facts of the case, Wilentz argues that the president, after more pointless talking about this all being the Republicans’ fault, could, “once a default occurred, use his emergency powers to end it and save the nation and the world from catastrophe.”  Sure.  Then he could step back into that phone booth and become mild-mannered Barack Obama again.  Seriously, that is the sum total of Wilentz’s recommendation.

Let’s review.  The Fourteenth Amendment says, in Section 4: “The validity of the public debt of the United States, authorized by law . . . shall not be questioned.”  The debts authorized by law are those to which Congress has obligated the nation by employing its power in Article I, Section 8 to “borrow Money on the credit of the United States.”  The debt ceiling is fixed by congressional action under this clause of the Constitution.  The president is constitutionally powerless to undertake any further borrowing on the credit of the nation without congressional authorization.

In truth, Section 4 of the Fourteenth Amendment does not empower the president to take any emergency powers that would incur more obligations of debt.  On the contrary, it should be read to constrain him to pay the debts we already owe, from current Treasury accounts, before spending on anything else.

Annual service on the national debt, according to the Treasury, is in the neighborhood of $415 billion.  The Treasury’s income (total receipts from taxes and other sources) for fiscal 2013, was close to $2.5 trillion.  There is roughly six times as much income at the Treasury as is needed to pay the interest (and any capital due on bonds) on the national debt.

If the debt ceiling is not raised, the president is obligated by the Fourteenth Amendment to see to it that Treasury services the outstanding debt.  All other spending, from the standpoint of the Constitution, is truly “discretionary,” including all “entitlement” spending, which is not in the category of constitutionally protected debt obligations.  The nation’s creditors are at the head of the line.  But there is plenty in the Treasury to take care of them.  It’s the rest of the public budget that is at risk, not the nation’s credit.

Wilentz’s default emergency, in short, is wholly imaginary.  So therefore is his conjuring of extra-constitutional “emergency” powers residing in the president to “save the nation and the world from catastrophe.”  Long before we might need to ask Professor Wilentz what Chavezian powers he has in mind, we will be past this particular “crisis.”

 

Matthew Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.  He is ...

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