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talkpoliticsSo, with the shenanigans now going on in the budget talks, the fear of a looming debt limit crisis is growing. Those fears are quite real, and if no deal is reached, a default could have vast and serious consequences.
As a response, many (including Congressmen involved in the debt ceiling fight) have suggested that there is a constitutional bar on the debt limit, which would empower the President to continue borrowing above the limit to ensure that the public debt didn’t go into default. That’s attractive in some ways – it ensures the outcome both parties want, without having to give up anything to Congress. I wanted to discuss that claim in a bit of depth here, as I think it’s important, and will be more so if the budget fight continues much longer.
The relevant language is found in the Fourteenth Amendment, Section IV, which reads “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.” Supporters of the so-called constitutional option claim that this means ”These debts have to be paid. . . in full, on time, without question” . Thus, measures to pay them, such as further borrowing, are not just a good idea, but constitutionally mandated.
The counter-arguments are, IMO, quite a bit stronger. First, there is the point that a default doesn’t question the validity of the debt. A repudiation would be a refusal to acknowledge the debt as legitimate, where as default would be a simple inability to pay a legitimate debt. Others argue that the constitutional burden would cut differently – that borrowing can only be authorized by Congress, and so the Treasury would have to turn to paying the debt and pension obligations, ignoring all others until those are fulfilled each month. This seems the most correct view. It ensures that the constitutionally mandated obligation will be fulfilled, and rightly leaves statutory obligations behind in terms of priority.
That said, none of the constitutional wrangling really matters, because we will never see a final decision on it from any court. Why? Two reasons: standing and political questions. Standing is notoriously difficult for Congressmen to assert standing to sue the President on the basis of allegedly unconstitutional actions, so it’s unlikely the courts will even examine the facts. If they do, the political question doctrine will rear its head. The doctrine basically states that, in a fight between the executive and the legislature, the courts will not get involved. They’ve used this to dodge several other contentious constitutional issues relating to the distribution of power between the legislature and the executive, and I don’t doubt that it’d be invoked here, if standing were found.
So, that’s my $0.02 on the constitutional issue. Breaking the ceiling is not constitutionally requried, IMO, but I doubt anyone will ever be able to stop the president if he wants to do it.
As a response, many (including Congressmen involved in the debt ceiling fight) have suggested that there is a constitutional bar on the debt limit, which would empower the President to continue borrowing above the limit to ensure that the public debt didn’t go into default. That’s attractive in some ways – it ensures the outcome both parties want, without having to give up anything to Congress. I wanted to discuss that claim in a bit of depth here, as I think it’s important, and will be more so if the budget fight continues much longer.
The relevant language is found in the Fourteenth Amendment, Section IV, which reads “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.” Supporters of the so-called constitutional option claim that this means ”These debts have to be paid. . . in full, on time, without question” . Thus, measures to pay them, such as further borrowing, are not just a good idea, but constitutionally mandated.
The counter-arguments are, IMO, quite a bit stronger. First, there is the point that a default doesn’t question the validity of the debt. A repudiation would be a refusal to acknowledge the debt as legitimate, where as default would be a simple inability to pay a legitimate debt. Others argue that the constitutional burden would cut differently – that borrowing can only be authorized by Congress, and so the Treasury would have to turn to paying the debt and pension obligations, ignoring all others until those are fulfilled each month. This seems the most correct view. It ensures that the constitutionally mandated obligation will be fulfilled, and rightly leaves statutory obligations behind in terms of priority.
That said, none of the constitutional wrangling really matters, because we will never see a final decision on it from any court. Why? Two reasons: standing and political questions. Standing is notoriously difficult for Congressmen to assert standing to sue the President on the basis of allegedly unconstitutional actions, so it’s unlikely the courts will even examine the facts. If they do, the political question doctrine will rear its head. The doctrine basically states that, in a fight between the executive and the legislature, the courts will not get involved. They’ve used this to dodge several other contentious constitutional issues relating to the distribution of power between the legislature and the executive, and I don’t doubt that it’d be invoked here, if standing were found.
So, that’s my $0.02 on the constitutional issue. Breaking the ceiling is not constitutionally requried, IMO, but I doubt anyone will ever be able to stop the president if he wants to do it.
(no subject)
Date: 5/7/11 15:15 (UTC)"..a default doesn't question the validity of the debt." No, it just means a country that does it is a flake, can't be trusted, and has no business being regarded as a world leader.
You're right; it will never get to court. It ranks right up there on the judicial fear scale with interpreting the 2nd Amendment.
(no subject)
Date: 5/7/11 15:17 (UTC)(no subject)
Date: 5/7/11 15:23 (UTC)(no subject)
Date: 5/7/11 15:26 (UTC)(no subject)
Date: 5/7/11 15:31 (UTC)