What role has the Constitution played in the persistent argument over raising the debt ceiling? There is the Republican push for a constitutional amendment requiring a balanced budget (which I will address in a later post) and the Democratic argument, now abandoned, that the Fourteenth Amendment makes it unnecessary for the president to get congressional approval on raising the debt ceiling since, as section four of that amendment reads, "the validity of the public debt of the United States, authorized by law, including debts incurred for the payments of pension and bounties for service in suppressing insurrection or rebellion shall not be questioned."
This Democratic position created one of the more theatrical moments of the months-long debate when, at a Politico breakfast attended by dozens of reporters earlier in the summer, Treasury Secretary Timothy Geithner waved a copy of the Constitution and asked, rhetorically, of the president's Republican opponents: "Have you read the Fourteenth Amendment?"
The statement surprised many in the audience since it was thought that any attempt to shut Congress out of the process would be politically disastrous, and, indeed, despite former President Bill Clinton chiming in to support the position, last Friday President Obama took it off the table. "I have talked to my lawyers," said Obama, of the Fourteenth Amendment reasoning. "They are not persuaded that that is a winning argument."
Why? Truth is, no one knows quite how to understand the fourth section of the Fourteenth Amendment since there is no doctrine to consult. The Supreme Court has not addressed the issue. "It's not clear, it's not been tested," said George Washington University Law Center's Jonathan Turley to Keith Olbermann on Olbermann's Current TV program, Countdown. "For a law professor who comes to watch the cars crash, it could be exciting. But I'm not too sure it's good for the country."
Political questions
That last argument -- what is "good for the country" -- would almost certainly be part of any federal court decision on this issue and it would likely look at it this way: no matter how the language reads and no matter how we understand it to be applied in this circumstance, the size, scope, and particulars of the national budget are without a doubt a "political question." In other words, a decision best left to the branches elected by the people, not the judiciary.
High school civics classes may leave us with the impression that the American system of government is split between three co-equal branches. But in fact, there is a priority to the two political branches -- the executive and the Congress -- which the courts have traditionally respected as superior on many matters.
Yes, constitutional doctrine does provide the judiciary with the power to overturn acts of Congress as inconsistent with the Constitution. But especially in areas, like the national budget, where the Constitution clearly establishes the responsibility for action with the political branches, the courts, as the least democratic branch, are loath to intervene.
A lesson from Harry Truman
There is even a hierarchy between the two political branches with Congress holding a slight edge. Consider the Court's landmark 1952 decision in the Steel Seizure case, also known as Youngstown Sheet and Tube Company v. Sawyer. The case, which involved President Harry Truman's decision to take over the steel industry when it was in the midst of a labor dispute that threatened to stall production and create economic instability, ended with a stinging rebuke of the president and the establishment of a formula of sorts by which to judge the relative power positions held by these often competing branches of government.
Justice Hugo Black wrote the majority opinion, siding with the steel industry. But it was Justice Robert Jackson's concurrence which carried forth as a guiding principle. Jackson said that there are three categories of congressional-executive disputes: those where the president is attempting to use power expressing or implicitly established by Congress; those where Congress has said nothing on the issue; and those where Congress has been clearly in opposition to the president. These, he said, should be seen in descending order of legitimacy. In other words, the president needs Congress's assent or, barring that, silence to act within the scope of constitutional authority.
This Congress -- our Congress, that is -- may not, as of today, have spoken on the issue of raising the debt ceiling, but it has been anything but silent, suggesting, in Justice Jackson's formula, that not only is the debt ceiling a "political issue," but the president does not have the authority here to act alone.
For an executive of the world's most powerful nation, that can be bitter medicine. Back in 1952, when the Court told Harry Truman to relinquish his hold over the steel industry, the combative president was stunned. Later that afternoon, Justice Hugo Black invited him over to his home for a drink. "Hugo," the president reportedly said to his host, "I don't much care for your law, by golly this bourbon is good."
This post first appeared on the Constitution Daily.
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If you use this approach you will save America from the hand of the republican establishment that from their first days of existing has been anti America.
The gops are always whining like lil-itches in wanting everything to go their crooked a$$$ ways. I CAN'T WAIT FOR 2012 FOR MOST OF THEM TO BE VOTED OUT AND PEOPLE TELL THEM TO GO HELL.
So when the exact same situation arises, the govt offers two opposite solutions. Kinda like insanity.
pshakkottai
There's another relevant Supreme court action: Case 330; Perry v. US:
5. By virtue of the power to borrow money "on the credit of the United States," Congress is authorized to pledge that credit as assurance of payment as stipulated -- as the highest assurance the Government can give -- its plighted faith. To say that Congress may withdraw or ignore that pledge is to assume that the Constitution contemplates a vain promise, a pledge having no other sanction than the pleasure and convenience of the pledgor. P. 294 U. S. 351.
6. When the United States, with constitutional authority, makes contracts, it has rights and incurs responsibilities similar to those of individuals who are parties to such instruments. P. 294 U. S. 352.
7. The right to make binding obligations is a power of sovereignty. P. 294 U. S. 353.
8. The sovereignty of the United States resides in the people, and Congress cannot invoke the sovereignty of the people to override their will as declared in the Constitution. P. 294 U. S. 353.
9. The power given Congress to borrow money on the credit of the United States is unqualified and vital to the Government, and the binding quality of the promise of the United States is of the essence of the credit pledged. P. 294 U. S. 353.
PERRY V. UNITED STATES, 294 U. S. 330
Common law (part of which Bill Schlesinger has shown above) already gives the President the power to pay the bills with a phone call...
EXCEPT
...that doing so would incur new debt, which the President is not authorized to do, as that power is SPECIFICALLY reserved for Congress.
That said, there is a possibility that we wouldn't "default" anyway, as we have sufficient funds to cover us for a period of time.
Section 4, of the 14th Amendment of the ConstitutiÂÂÂÂon states that: "The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions..ÂÂÂÂ.......Â.ÂsÂhÂall not be questionedÂÂÂÂ.
And, Section 5, of the 14th Amendment states that "Congress shall have power to enforce, by appropriatÂÂÂe legislatioÂÂÂn, the provisions of..... [article 4"].
Wherefore it seems that applicatioÂÂÂn of Section 5 in conjuction with Section 4 clearly implies that it is Congresses sole responsibiÂÂÂlity to assure that the “full faith and credit†of the United States is never jeopardizeÂÂÂd.
The question then becomes, what recourse does the President have if Congress shirks its responsibiÂlity and defaults on its public debt obligations?
In fact, it could further be argued that any reduction in the country's AAA credit status violates the "full faith and credit" doctrine.
The President can argue, thru the Attorney's General office, that any member of Congress that votes against raising the debt ceiling or causes the US to default on its debt obligationÂÂÂs is, in fact, acting not in accord with the principles set forth in the constitutiÂÂon.
Then, by "Executive Order" the President, thru the Treasury", must take over the purse strings and prioritize payments so not to default. AdditionalÂly, the Treasury could issue new debt to pay for old debt.
And that's the rub: Nobody really knows, since there are so many competing rules and laws.
If Congress defaults, and the President tells the Treasury to pay the bills, has the President broken the law and committed an impeachable offense?
If the Treasury goes along with him, have THEY broken the law?
A debt limit would only question the validity of the debt if the debt existed first, and then a debt limit lower than the existing debt was imposed thereby nullifying debt that was already incurred.
Our present debt limit only says that the country will only take on so much debt, that debt being valid.
Our ability to pay that debt is another matter. If we have to forever raise the debt ceiling just to pay our debts, the interest rate on our debt will eventually outpace our tax revenues and we will lose our ability to pay back our debt. At that point, no one will want to give us a loan because they know we will never pay it back (like Greece, Iceland, and Ireland).
See the congress has validly passed bills which authorize spending and the taking on of debt. The debt limit calls the validity of those debts into question as it forces them to be defaulted on if the debt limit is reached by spending in previously approved and authorized funds. Congress appropriated the funds, which must be borrowed since congress did not provide sufficient revenues. Therefore, the debt limit calls into question the validity of the public debt, and as such it is unconstitutional.