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  • Can the President Raise the Debt Ceiling by Himself?

    As the federal government once again approaches the debt ceiling, partisans are again pulling out the heavy artillery: Don’t bother negotiating with Republicans on taxes and spending, they tell the President, just declare the debt ceiling in violation of the Fourteenth Amendment and ignore it.

    As a matter of law, that gambit is just as wrongheaded as it was when this came up last year. As Heritage explained at the time:

    Section four of the Fourteenth Amendment provides, “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.”

    This clause simply means that Congress and the President cannot question the validity of debt that is already incurred, but it in no way requires the nation to incur more debt. Even if it precludes temporary default—which is far from clear—it could not authorize the President to incur additional debt.

    At most, this clause might require the federal government to prioritize debt payments on existing debt, but no one doubts there is enough tax revenue to cover service on existing debt—without incurring more debt. Besides, the President’s unilateral action to add new debt in violation of a debt limit would not be “authorized by law” and so would be the opposite of what the clause requires.

    In addition, unilateral action by the President to take on additional debt would be a clear violation of the Constitution’s separation of powers. After all, the Constitution vests in Congress—and withholds from the Executive—the power to commit to spending, to raise revenue by enacting taxes, and to incur public debt. The Fourteenth Amendment did not alter this. Congressional control of borrowing, through the debt limit, and section four of the amendment are in unison, not tension.

    The law here isn’t complicated, and, aside from a few rabid partisans, there’s not even much disagreement on this point. Dean Erwin Chemerinsky, a reliable liberal on most matters, concedes, “there is no plausible way to read this provision [Section 4 of the Fourteenth Amendment] as providing the president the ability to increase the debt ceiling without congressional action.”

    Professor Larry Tribe, the constitutional litigator and treatise author who has regularly advised President Obama on matters of constitutional law, agrees, writing, “Nothing in the 14th Amendment or in any other constitutional provision suggests that the president may usurp legislative power to prevent a violation of the Constitution,” including a default.

    Add to that list of doubters our Constitutional-Law-Professor-in-Chief: Obama says the Fourteenth Amendment is not “a winning argument.” And the President’s spokesman admits, “There are no tricks, there is no citing of the Constitution that suddenly allow us to borrow.” (Treasury Secretary Tim Geithner, too.)

    More than bad law, disregarding the debt policy would be terrible policy. Perhaps the most risible preemptive justification comes from the Jamelle Bouie in The Washington Post, who cites “potential…damage to the economy” from another debt standoff as reason for the President to shrug off the debt limit. But any risk to the economy from a late-in-the-day debt deal would be counterbalanced, and then some, by the massive political, legal, and financial upheaval that would follow exercise of this nuclear option. Even among those who believe the debt-limit mechanism to be sometimes dysfunctional, does any really think that smashing it with a sledgehammer is somehow more responsible than just reaching a deal with Congress?

    Tossing the text of the Constitution and centuries of constitutional practice by the wayside isn’t something to be done lightly, and surely not for something so ephemeral as strengthening the President’s “negotiating position” with Congress—which Bouie identifies as his chief object. And judging by their rhetoric—Members of Congress who seek to cut spending are “hostage takers” and worse—others in the smasher camp seem to share his focus on short-term political dividends, while paying little mind to the consequences.

    For the sake of our Constitution and our finances, may cooler heads prevail.

    Posted in Legal [slideshow_deploy]

    8 Responses to Can the President Raise the Debt Ceiling by Himself?

    1. Blair Franconia, NH says:

      I'm assuming this means current debt. It has no bearing on future debt. I'm not a lawyer but I'm assuming that the
      President doesn't have the authority to act unilaterally.

    2. Boccagalupe says:

      I think that this means that the president has no, absolutely no legal authority to incur debt for present or for future spending. The post person would advise obama to be a dictator and go over,under,around & behind the back of congress to continue spending. Their ruse is to "service" the national debt. But once the debt was incurred and the cash in hand this spend-a-holic president would act like a drunk spendthrift.

    3. Kahr50 says:

      Of course he can – he is the one supreme being of the US.

      Haven't you heard? The idiots re-elected their dicatator in chief.

    4. RennyG says:

      This person can do anything he wants. "He is doing it now!!!! " He has shut down the Senate, The republican control of the House means nothing to him. So, in short, he controls the congress, the judicial system, the supreme court!" What is there to stop him?? I say "he" caused most of this mess so the republicans should say "NO" and let the chips fall where they may. The republicans have no power anyway, so let him "fix it!!" Renny

    5. GEORGE KIBBY says:

      It's really pretty simple. If Obama does this, just have everyone who voted against him take their money out of the bank. If you work for someone else, raise your dependents to the limit. If you do quarterly taxes, estimate them low. Just those two things will bring him to his knees.

    6. Segev says:

      I hate to say it, but what happens if he just says so? He's in contempt of court for continuing to hold a moritorium on oil drilling in the Gulf (a court found it an illegal action on his part; he hasn't got the power to do it), and yet the moritorium is in effect and nobody is treating him like a criminal.

      Seriously, can you name ANYTHING he might declare to be "the way things are" that you think would not be enacted by his executive agencies? That the media would report as anything other than him taking bold leadership? That would do more than have some people say, "But he can't do that! This is illegal!" even as they comply with the new directive and are treated as loons for daring to question it?

    7. fjn says:

      But what if we hit the wall before any new spending is authorized?

      This logic of the argument detailed here would only work I think if the debt ceiling had to be raised because of future spending, but in reality the debt ceiling has to be raised because of the spending congress already authorized in the past, going over the limit they set for themselves well aware that they were going to hit this wall again. They already authorized the debt into law.

      To me this is the only good argument against it.
      “Nothing in the 14th Amendment or in any other constitutional provision suggests that the president may usurp legislative power to prevent a violation of the Constitution"
      I don't think it's in Obamas power to call them out on it, although it would be nice if SOMEBODY in our government could hold another accountable for not following the constitution, wonder if the SCOTUS could get involved?

      The debt ceiling isn't the right way to fight gov spending, this is just going to hurt our credit rating some more and convince more people to vote Democrat. It is possible you know to convince people that the free market works without all this. Starving the beast is proven not to work.

    8. wizardwerdna says:

      With due respect, the "analysis" in the article proper is full of what, but weak in why. What does it mean for the Congress to allocate funds for a thing, if it does not tacitly authorize the payment for that allocation? The debt ceiling, at least to the extent passed prior to that allocation, at least as understood by the article, requires the reading of the allocation of funds to be a nullity — to authorize spending while barring the spending.

      What if the President were to simply issue new bonds under this interpretation of the allocative acts of Congress? What remedy would there be?

      What if the President were to simply print the money, or mint a big honking coin and deposit it in the Federal Reserve? What remedy would there be?

      Where, as here, the President's decision to pay the nation's bills saved a nation's credit, what Supreme Court would find for the nation's economic suicide? What Court would even take up the case in view of the abstention doctrine? What if the President simply ignored an order of the Court in this case?

      It is one thing to claim, without argument or proof beyond "a few liberal professors don't agree," but what does that matter once the thing is done? Wouldn't that be a wrong without a remedy?

      Such is the nature of a Constitutional Crisis — particularly when the nation faces an on-the-brink economic crisis.

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