Misunderstanding The Constitutional Option On The Debt Ceiling
In today's New York Times, Lawrence Tribe misses the mark on the argument about the Fourteenth Amendment's requirement that "The validity of the public debt of the United States, authorized by law, shall not be questioned. Tribe creates a straw man, declaring that "[s]ome have argued that this principle prohibits any government action that “jeopardizes” the validity of the public debt. By increasing the risk of default, they contend, any debt ceiling automatically violates the public debt clause." No one has argued that as a general proposition. The argument is that "public debt authorized by law" may cause the debt ceiling to violate the Fourteenth Amendment, and in those circumstances, the President MAY be empowered to ignore the debt ceiling law.
In the press and in the public commentary, however, the issue has been repeatedly posed as whether or not the debt ceiling is constitutional under section 4 of the Fourteenth Amendment.
This is the wrong question.
We have had a debt ceiling in this country for a long time. Imposing a ceiling on the amount of debt the United States can take on does not by itself violate the Constitution. Quite the contrary, doing so is an exercise of Congress's powers under Article I, section 8.
Rather, the correct question is whether either the President or Congress, or both, are acting in a way to call the validity of the public debt into question. If they are, then they have a constitutional duty to stop, and take appropriate measures.
[. . .] There is a second question making the rounds, which is equally misleading: People want to know whether the President may threaten to issue new debt if Congress does not raise the debt ceiling.
Again, this the wrong question to ask. [. . .] If Congress refuses to raise the debt ceiling, the President is bound under Article II to take care that the laws are faithfully executed. This duty includes *all* of the laws, including section 4 of the Fourteenth Amendment, the laws passed by Congress that appropriated funds and ordered the President to spend them, and the debt ceiling.
The President (and the Treasury Secretary) must therefore act in such a way as to honor all of these commitments to the greatest extent possible.
That is the point of the Constitutional option with regard to the debt ceiling. Now comes the hard part. Balkin continues:
What I have just said assumes that not every service that the government provides is part of the public debt within the meaning of section 4. Thus, I assume that a government shut-down, in and of itself, need not violate section 4 of the Fourteenth Amendment, if the government does not default or threaten to default on "the public debt," however that is defined.
It is possible that the President and Congress may disagree about what falls within that definition. If so, the President must make the call as best he can, because he has an independent constitutional duty not to violate Section 4 of the Fourteenth Amendment. He does not have to accept Congress's view. He may view the factors that lead to questioning the public debt more broadly than Congress, because he may worry that markets will see the government's operations (and thus its creditworthiness) as interconnected.
THIS is the question. What can the President do to comply as best he can with the 14th Amendment? To me, Balkin goes to far, arguing for emergency powers for the President to "borrow." The Constitution is explicit on this point. The President has no power to borrow on behalf of the country. Only the Congress has such power.
I DO believe the President has the power to decide the priority of payment and to define which obligations constitute "the public debt." I think that is what people are arguing for, not for Presidential borrowing (which is not likely to be very effective anyway.)
Interestingly, there is a device for an executive branch borrowing without legal authority - a moral obligation bond.
Would a "moral obligation bond" be legal for the U.S. Treasury? I think not, but who gets to bring the case?
Speaking for me only
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