Saturday, January 12, 2013

The Debt and the Constitution

Senate Democratic leaders have written President Obama:
In the event that Republicans make good on their threat by failing to act, or by moving unilaterally to pass a debt limit extension only as part of unbalanced or unreasonable legislation, we believe you must be willing to take any lawful steps to ensure that America does not break its promises and trigger a global economic crisis — without Congressional approval, if necessary
Majority Leader Harry Reid, D-Nev., is among those urging Obama to consider options like invoking the 14th Amendment to the Constitution to find ways around the $16.4 trillion legal cap on government borrowing. The amendment states that the “validity of the public debt of the United States ... shall not be questioned,” which some lawmakers believe permits a way out of the debt limit jam.
At The Los Angeles Times, Erwin Chemerinsky wrote in 2011:
Unfortunately, there is no plausible way to read this provision as providing the president the ability to increase the debt ceiling without congressional action.
Article I, Section 8 of the Constitution says that it is Congress that has the power "to borrow money on the credit of the United States." The Constitution thus could not be clearer that borrowing money requires congressional action. Nothing in Section 4 of the 14th Amendment takes this power away from Congress or assigns it to the president. Section 4 of the 14th Amendment says only that the debt of the United States shall not be questioned; it says nothing about who gets to determine the size of the debt or in any way shifts this power from the legislature to the executive.
The power of the purse -- including the authority to tax, spend and borrow -- is quintessentially legislative. Not even a dire financial emergency would allow the president to take this over. The Constitution, thankfully, has no provision allowing for its suspension even in times of crisis.
Moreover, the debt ceiling is set by statute. Unless this law is unconstitutional, which it obviously isn't, the president cannot unilaterally repeal it and replace it with another law setting a higher debt ceiling.
Laurence Tribe, who once taught a young law student named Barack Obama, made a similar argument.

Around the same time as these articles, the president said:
There's a provision in our Constitution that speaks to making sure that the United States meets its obligations. And there have been some suggestions that a President could use that language to basically ignore this debt ceiling rule, which is a statutory rule. It's not a constitutional rule. I have talked to my lawyers. They do not—they are not persuaded that that is a winning argument. So the challenge for me is to make sure that we do not default, but to do so in a way that is as balanced as possible and gets us at least a downpayment on solving this problem.