74 wrongs do not make a legal right. Since 1962, 74 debt ceiling bills have been passed by Congress and signed into law by eight different presidents. Each debt limiting act was unconstitutional.
Section 4 of the Constitution's 14th Amendment states: "The validity of the public debt of the United States, authorized by law, including debts incurred for payments of pensions... shall not be questioned." The existence of a debt ceiling questions the validity of our Republic's debts; it presupposes that Congress will continue to overdraft. A debt ceiling is unconstitutional and its effect a legal nullity.
History provides Barack Obama the opportunity to break the unconstitutional debt ceiling cycle. President Obama should issue an Executive Order renouncing the debt ceiling as unconstitutional and affirming that his administration will fully honor all past, present and future debts and obligations. Obama may yet be convinced by the growing number of political and economic arguments for this constitutional option.
However, there is another way Americans can enforce the Constitution -- individual litigation. Obviously, this litigation requires an emergency fast track.
Grandma Bondholder Sues, Citing Perry v. U.S
Any individual with standing to aver direct harm from a default (i.e. any individual who is a Social Security pensioner or bondholder) could file an emergency federal lawsuit. Grandma Bondholder's suit would essay the unconstitutional nature of debt ceiling and ask the court to enjoin the effect of a debt ceiling driven default. Emergency certification for appellate review would follow the trial court ruling.
Supreme Court precedent for such an individual lawsuit is strong. When Congress attempted to renege on a national bond obligation during the Great Depression, the U.S. Supreme Court struck down the congressional act as contrary to the 14th Amendment. The Court voided a Joint Resolution which forbade the Treasury to repay Liberty Bonds in actual gold coin as had been contractually promised in the bond sold in 1917 (ironically the same year as the first formal congressional debt limit).
In Perry v. United States, the high court ruled that Section 4 of the 14th Amendment confirms a "fundamental principle" applicable to all manner of public debt and government obligation. In the 1935 opinion, Chief Justice Hughes stated broadly that "the validity of the public debt" language of the 14th Amendment embraces "whatever concerns the integrity of the public obligations."
After a default, thousands of potential litigants will be ready to queue up in front of a federal courthouse. Best if Grandma Bondholder files an emergency lawsuit before the unconstitutional debt ceiling causes what Treasury Secretary Tim Geithner warns would be a "catastrophic" event.
Better yet, our elected representatives could affirmatively honor both the Constitution and the nation's debt obligations.
Victor Williams is an attorney in Washington D.C. and a clinical assistant professor at Catholic University of America's School of Law.