The Constitutionality of the Debt Ceiling

An increasing number of pols and legal analysts (and the NYT editors) are making the claim that if Congress fails to raise the debt ceiling, the President could claim the constitutional authority to continue borrowing money. After all, section 4 of the 14th amendment notes:

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.

Laurence Tribe has a decent piece in today’s NYT addressing the weak foundations of this strategy. With respect to the Constitution, Tribe explains:

The Constitution grants only Congress — not the president — the power “to borrow money on the credit of the United States.” 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. Moreover, it is well established that the president’s power drops to what Justice Robert H. Jackson called its “lowest ebb” when exercised against the express will of Congress.

Then there are the practical problems:

Once the debt ceiling is breached, a legal cloud would hang over any newly issued bonds, because of the risk that the government might refuse to honor those debts as legitimate. This risk, in turn, would result in a steep increase in interest rates because investors would lose confidence — a fiscal disaster that would cost the nation tens of billions of dollars.

Tribe is correct. Yet, is there any reason to believe that the explicit words of the Constitution would suddenly provide a firewall against the expansion of executive authority?

3 thoughts on “The Constitutionality of the Debt Ceiling

  1. Tribe’s argument is interesting, and I believe that he is correct.

    However, if he is right, he points out an interesting constitutional defect: If Congress is obligated to ensure that the debts of the United States are paid and fails to do so then what is the mechanism by which Congress is compelled to live up to their Article II/Fourteenth Amendment mandates?

    In my view Tribe gets us out of one constitutional swamp to directly get us bogged down in another one…

  2. I don’t think the founders anticipated a time when it would be routine to borrow for nearly half of expenditures on annual basis with absolutely no hope or plan for paying it back. Is that a defect of the founders or the present governing class?

  3. The Constitution is dead. The document has been so misinterpreted and changed around that the original intent of the founders has been lost to history.We do not live in a nation of laws but a nation of powerful men. What has happened is that over time,the political class has slammed a square peg(socialism/fascism)into a round hole (a limited Republic) causing the hole to disintegrate. Talk of “following the Constitution” and obeying the “Law” is nonsense. The Constitutional intent of the founders for a “chain that bounds” died a long time ago.

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