Is The Debt Limit Ceiling Unconstitutional?
Should President Obama invoke Article 4 of the 14th Amendment to the Constitution to ignore Congress’s debt limit ceiling and authorize the Treasury to continue paying government’s bills even though the government has no money?
An opinion piece on that subject appeared yesterday in the Washington Post:
“Invoke the 14th – and end the debt standoff” – Katrina vanden Heuvel, Washington Post, 7/5/2011
This is exactly what should be done if Democrats and Republicans cannot come to an agreement over raising the debt ceiling before the end of the month, according to self proclaimed progressive thinker and publisher of “The Nation“, Katrina vanden Heuvel.
She says it would become necessary to avoid calamity.
According to Heuvel, “Republicans have been negotiating in bad faith, unwilling to compromise even an inch on their extremist and absolutist positions”. In the liberal mindset Republicans always get blamed for things, rarely Democrats.
Huevel contends that if an agreement is not reached that President Obama “is constitutionally required to order the Treasury to continue paying America’s bills.”
She is not the first to suggest this solution for the debt limit debate. It is rampant all over the liberal blogosphere.
Is Huevel right? Lets find out…
What is Article 4 of the 14th Amendment to the Constitution?
It is part of the “Citizen’s Rights” amendment that came out of the Civil War and ratified July 9, 1868.
Article 4 says:
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. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Heuvel’s fundamental justification for her argument is the underlined part above.
Article 4 was included in specific response to war debt acquired by the South during the Civil War and claims of financial compensation made by former slave owners resulting from the Emancipation Proclamation.
The Formal Argument
According to Heuvel, despite that President Obama would be overriding a law passed by the Congress and signed into law in 1917, he has “strong legal footing” for doing so.
She sites a Supreme Court decision saying, “In Freytag v. Commissioner (1991), the Supreme Court held that the president has ‘the power to veto encroaching laws . . . or to disregard them when they are unconstitutional.’ “
It all boils down to this simple set of assertions:
- Congress’s debt ceiling law of 1917 violates Article 4 of the 14th Amendment to the Constitution
- The President is bound by the oath of office to refuse enforcement of laws that are unconstitutional
- The debt limit ceiling is unconstitutional and therefore the President must override enforcing it
Its all nice, neat and tidy. Or is it?
On the Constitutionality of the Debt Ceiling
The debt ceiling has been in place for 104 years and upped zillions of times – raised 8 times just since the year 2001!
Doesn’t it seem strange that in all that time and through all the partial government shutdowns we’ve suffered and all the political bickering over the debt limit and deficits over the years that its constitutionality has not been challenged in the Supreme Court before now?
There has got to be a reason for that.
Why The Debt Ceiling Doesn’t Violate The Constitution
No legal authority questions the validity of the public debt as stated in the 14th Amendment. Nor does having a debt ceiling say the United States cannot take on debt.
The United States can and should acquire public debt in times of need.
Though conservatives question the fiscal sanity for having a large public debt, it is constitutionally authorized.
In Section 8, under the “Powers of Congress“, it clearly states that one of those Congressional powers is:
To borrow money on the credit of the United States
Clearly, the Legislative Branch is charged with borrowing money and setting debt… not the Executive Branch.
The 14th Amendment simply acknowledges that there is a national debt and that people just can’t ignore it. It only refines the concept of debt to define legal debt from illegal debt.
Debt acquired through a “rebellion” , i.e. the South’s Civil War debt, or claims resulting from Emancipation are illegal debts that don’t have to be paid. That’s all it says.
It does not say who determines when or how much debt can be acquired by the government. That is covered by Section 8’s simple one-liner.
The 5th Article of the 14th Amendment reinforces that the Legislative Branch and Congress controls spending.
The 5th Article of the 14 Amendment says:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
That includes Article 4. It means the 14th Amendment says Congress decides what is legal debt and what isn’t and has the power to legislate debt. Period. End of Argument.
Congress Established The Debt Limit Ceiling
The First Liberty Bond Act of 1917 authorized Congress to sell war bonds to citizens to raise money to pay for World War I expenses, instead of through traditional borrowing. That saved the government on interest costs.
Under Section 8 authority the Congress set a public debt ceiling when the Second Liberty Bond Act was passed 5 months later to issue more bonds. That was added as a prudent measure to prevent government from spending beyond its means and dilute the worth of the citizen bonds.
A 3rd and 4th set of liberty bonds were issued in 1918 and the debt ceiling raised along with them. Imagine that!
Congress has been controlling the purse strings, albeit not very well, ever since.
Way back in 1917 government actually believed in eventually paying off debt. It doesn’t anymore. 55 years of continuous debt growth proves that.
What Heuvel incorrectly views as a debt constitutionality issue is really a question of the Separation of Powers between the Executive and Legislative branches of government.
Its a lead pipe cinch the Supreme Court would uphold that.
And that is why the constitutionality of the debt limit ceiling has not been challenged in 104 years!
The Bottom Line
We’ve come a long way since 1917.
However, to win a political battle in 2011, Katrina vanden Huevel now suggests that not only shouldn’t we pay off debt, but that we can and should spend without limit for any purpose, whether there is money or not.
Through her contorted logic Heuvel claims the President is constitutionally bound to do so.
And so operates the liberal mindset.
Thank goodness the Constitution is crystal clear on where the authority and responsibility for spending resides.
Lets sit down and fix the problem, not argue it away.