Wednesday, June 29, 2011

Fourteenth Amendment and Debt Ceiling


The provision of the Fourteenth Amendment that is being raised in the context of debt ceiling debates in Congress is section 4:

 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.

Generally, of course, it is section 1 of the Fourteenth Amendment - - - with the due process clause and the equal protection clause - - - that garners all the attention and litigation.  But there are arguments that section 4 would make any Congressional assertion of a "debt ceiling" unconstitutional.

Professor Garret Epps has articulated the argument here and here; it's been gathering attention including a well-reasoned article in The New Republic which extensively relies upon Epps.  Over at Slate, the argument is deemed a "gimmick." 


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The debt ceiling legislation was just an easy way to reduce the need to vote to borrow money every time they needed to..

Posted by: Send Money | Jun 30, 2011 10:10:18 AM

If I understand this the Constitution trumps any other law like the debt ceiling.

The debt ceiling raise is needed not for new spending but that that has been already authorized by Congress, ie by law and thus the President has 2 duties:
1) Uphold all laws that have been passed
2) The debt has already been committed to over many years so it is valid and "shall not be questioned.

That makes using the 14th a no brainer.

The Presidential oath also requires the President to protect and defend the Constitution. If he does not follow it as laid out above one could argue you could impeach him as well.

In fact all members of Congress took a similar oath so their inaction to provide the debt ceiling action needed to fund the laws passed by them could be deemed a violation of their oath of office subjecting Boehner in particular to impeachment. Right?

The other issue here is that failure to protect the nation's financial system from a meltdown is akin to "war" and the President again is bound to protect the nation as well. Keeping the nation from falling into a deeper recession, higher borrowing costs, higher deficits due to a double dip and the world losing faith in the US as a reserve currency makes his inaction on the 14th impeachable to me.

Failure to act has been estimated to cost the US $50B minimum directly for even a few day default due to increased debt rollover costs and as much as a trillion over a decade not to mention higher borrowing costs for consumers and business as well.

The President has put forth $2T in cuts and asked for $400B in tax loopholes being closed. Every deficit reduction plan that Reagan, Bush I and Clinton did required a combination. Why can't the Repubs simply negotiate in good faith and get this done?

If they do not they will get hung out to dry by the President being forced to act under his Constitutional duty. That surely isn't going to help them defeat Obama. It might just sew up his re-election before they even have a primary.

If they think he isn't tough enough to do this. Just remember the Sunday nite we found about Osama or the Somali pirates that were taken out right after he took office.

If he needs to he will act and get the job done as he should, no doubt about it.

Here is the case law to support it:

PERRY V. UNITED STATES, 294 U. S. 330 (1935)

The government’s contention thus raises a question of far greater importance than the particular claim of the plaintiff. On that reasoning, if the terms of the government’s bond as to the standard of payment can be repudiated, it inevitably follows that the obligation as to the amount to be paid may also be repudiated. The contention necessarily imports that the Congress can disregard the obligations of the government at its discretion, and that, when the government borrows money, the credit of the United States is an illusory pledge…

The Constitution gives to the Congress the power to borrow money on the credit of the United States, an unqualified power, a power vital to the government, upon which in an extremity its very life may depend. The binding quality of the promise of the United States is of the essence of the credit which is so pledged. Having this power to authorize the issue of definite obligations for the payment of money borrowed, the Congress has not been vested with authority to alter or destroy those obligations.

Posted by: John N | Jul 2, 2011 2:27:46 PM

Power of enforcement of the 14th ammendment lays only with the congress by "appropriate legislation". If Obama defied the congress, he could and should be impeached. Try reading the full ammendmendment, including section 5.

Posted by: David | Jul 27, 2011 7:46:43 PM

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