The Debt Limit and the Constitution

The Huffington Post is reporting that some Democrats — nervous that they might not get a debt limit deal they like? — are hoping President Obama will “use the Constitution” to unilaterally raise the debt limit. The article cites support for the idea from top Democrats in Congress, including Nancy Pelosi, Steny Hoyer, John Larson, Jerrold Nadler, and James Clyburn. 

Apparently it is not enough for this gang of constitutional lightweights that President Obama himself has rejected the possibility, stating that his lawyers didn’t think it was “a winning argument.” And if anyone doubted the president’s position, his spokesman clarified:  “Congress has the legal authority — and only Congress has the legal authority — to extend that borrowing authority.”

Tim Geithner and Bruce Bartlett got this ball rolling several months ago when they quoted the text of the 14th Amendment that “the validity of the public debt of the United States … shall not be questioned.” That would seem to settle the matter, right? The public debt shall not be questioned, Congress might fail to reach a deal, so the president should act! Well, if it weren’t for the fact that the text and original meaning of the 14th Amendment stand for something completely different. As an initial matter, that ellipsis replaced the very important terms “authorized by law.” 

As Sen. Mike Lee explains in the video below, it is Congress, not the president, that has the authority to extend the debt of the United States.

If you don’t trust Senator Lee, perhaps you would be more persuaded by Professor Laurence Tribe, who wrote in the New York Times that

the Constitution grants only Congress — not the president — the power “to borrow money on the credit of the United States.” 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.

Or maybe you’re more of a Professor Michael McConnell fan:

The “debt ceiling” is simply the limit Congress has imposed on how much money the country may borrow. The executive branch cannot constitutionally borrow a dime in excess of this amount. Section Four of the Fourteenth Amendment does not create a back-door method for the Administration to borrow more money without congressional authorization. For Congress to limit the amount of the debt does not “question” the “validity” of the debt that has been “authorized by law.” At most, it means that paying the public debts and pension obligations of the United States, as they become due, has priority over all other spending.

The bottom line is that this idea of using Section 4 of the 14th Amendment to raise the debt limit was the result of arm-chair lawyering and it should be treated with as much seriousness as the probability that the earth is flat. 

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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