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?