Democrats Raise Constitutional Argument In Favor Of Raising Debt Limit

Democratic members have raised a novel argument under the Fourteenth Amendment that the refusal to raise the debt ceiling is unconstitutional. For full disclosure, I was asked about this argument weeks ago by members who believe that forcing the country to default would be not just catastrophic but unconstitutional. I will be discussing this topic today on CNN and tonight on Countdown.

The relevant language of the Fourteenth Amendment states:

The argument goes that Section 4 of the Fourteenth Amendment declares:

“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. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.”

The argument goes that, by not lifting the debt limit, Congress is “questioning” “the validity of the public debt of the United States.” Under this logic, advocates are encouraging President Obama to simply pay the debts in accordance with the Constitution. That would be an extreme step that would add a constitutional crisis to an economic crisis.

The “authorized by law” clause could present an interesting debate since the debt ceiling is part of a federal statute — though conversely so is the obligation to pay things like social security.

The language is certainly written in absolute terms but it is not likely that a court would rule that it makes a failure to lift the debt ceiling unconstitutional. Congress can argue that it fully intends to pay its debts, but that there is a political dispute over how and when. They can argue that they were not challenging the “validity” of the debt but the priority in the payment. The United States will still be fully liable for the debt and the interest.

Of course, as with the Libyan War, the Administration could trigger the constitutional fight on the belief that no one will be able to get standing to challenge its payment of the debt.

Jonathan Turley

608 thoughts on “Democrats Raise Constitutional Argument In Favor Of Raising Debt Limit”

  1. That mandate, hospitals must not turn away emergency room patients who can’t pay, was added as part of the COBRA legislation.

  2. tony c:

    my GP makes around $110 k per year. and $400K for neurosurgeon? that doesnt seem like enough for around 20 years of training.

  3. I don’t think everybody is entitled to no cost healthcare. I think everybody is entitled to “AT cost” healthcare, I do not think anybody is ever entitled to exact a profit off of somebody else’s fear of death or fear of disability.

    For the inevitable question about who will perform it and what they will be paid, I think doctors should earn enough to keep them voluntarily enrolling in medical school and sticking it out. That turns out to be about $200K a year for a GP, about $400K a year for a neurosurgeon. That’s fine with me; I don’t consider those salaries exorbitant, I think they are fair reward for an uncommon level of commitment to a job.

    I have no problem paying a market wage for doctors, nurses, techs and others; we pay enough to keep the supply up. But I see no reason for anybody to have an explicit profit motive to cut corners or deny treatment to anybody. Healthcare should be a zero-profit operation.

  4. @KD: “There is no such thing as a benevolent dictator.”

    I do not believe that dictators or kings or unitary all-powerful heads of government is a good form of government. Nevertheless, you are lying; throughout history there have been benevolent kings.

    What you don’t realize is that if people do not band together for common cause, malicious dictatorship is a virtual certainty. This has also been proven throughout history, and in modern times; in modern Afghanistan, for example, the Taliban still rules the little towns and villages, and will kill, maim and rape those that refuse to comply with their religious will, or burn their houses down in the night, and kill their livestock. Thus it has been throughout the world for recorded history.

    Secondly, the ONLY way to prevent strongarming exploitation is by group action. Make yourself the bulletproof hero of your own little fantasy action flick where you always beat the bad guys that are always mysteriously dumber than you and never smarter than you. Back here in the real world, people with brains understand that we need to hire the guns that will protect us from the marauders. That does NOT have to create a dictatorship: Who here thinks a cop cannot be fired? Who here thinks a cop cannot be tried and convicted of a crime? Or a judge? Or a mayor? or state Governor?

    Dictators are NOT subject to criminal prosecution, and until recently even our own USA was living proof that a justice system CAN be a servant to the people, that even armed-and-dangerous law enforcement does not need dictatorial or royal powers to enforce the laws that we ourselves determine should rule us. We are not the only example of that; many countries in the world have learned they can pass laws and keep order by something other than royal decree.

    You seem to believe that ANY government with the power to collect taxes is a de facto “dictator,” and that is simply false. Criminals, whether they are murderers or tax skips, can be prosecuted and punished, by fine or imprisonment, without resorting to dictatorial powers.

    “We the people” determine the laws and hire the people it takes to enforce them. An entity cannot be the dictator of itself; it cannot use overwhelming force against itself to do anything against its own will.


    i listened to a talk by a congressman in which he said government used to pay for emergency room visits by people who could not pay, it no longer does. So health care is going up.

    Nicely done federal government, make a law pay for it and then stop paying for it and claim health care costs are too high.


  6. The problem is, as TonyC doesn’t realize or want to admit, is that there is no such thing as a benevolent dictator. Even the U.S. government has shown itself to be incapable of constraining itself with respect to wielding the power we give it to effect these “beneficial” safety net programs. Also, these programs fail economics 101, no that everyone is entitle to “no cost” medical care, education, and retirement, the price of providing these things has shot through the roof making them increasingly more expensive.

  7. @Roco: You asked me when income tax originated. I told you. I didn’t say I advocated those societies or wanted to emulate them, you are lying again.

    Some of those societies also prohibited murder and theft. We are not modelling our society on primitive, mystical king worshippers when we prohibit murder and theft, are we? Doing something they did does not mean we are modelled after them, it means we both are using a mechanism that works.

    But of course you know that, you have just run out of ideas so you are resorting to silliness and attacks on my background and education, because you cannot answer to the logic either.

  8. Tony C:

    “There is solid evidence of taxation on “income” from 5000 years ago; in the form of kings (or emperors, or high priests, or pharoahs, or whatever they want to call themselves) taking a share of crops or hunting bounty for themselves. In Genesis, the Bible tells Christians to pay 20% of their crop to the king. If you just want to ask, historically, how long have people been forced to surrender a share of their work or life to a government, the truth is probably 50,000 years, since the arrival of the modern-intellect humans; but actual hard evidence probably only goes back about 7500 years.”

    So you want to model our society on a primitive, mystical, supernatural, king worshipping society which treated people as the property of kings? Is that what you are telling me?

    I think it is, you want to take civilization and with it individual human beings back to a time when life was short, brutal and hard.

    The collectivist/Marxist/Socialist pops out of your very essence. You cant even help yourself it is so ingrained in your being. Where you brought up in a very liberal household? Marxist Eastern European immigrant parents or grandparents?

  9. @KD: You are off in the weeds too. Actually, I think 20% is pretty damn high for subsistence farmers; that creates a real hardship (perhaps even starvation) in a poor year.

    Plus, the pharoah was using the taxation primarily for personal luxury; not for providing common resources to the people, so in my mind that is closer to theft than simple mandatory participation in providing common services (like law enforcement or roads or primary irrigation ditches).

    Taxation, in my opinion, should exclude the portion of income necessary for basic common expenses; food, shelter, water, transportation, etc. That cost varies based upon the prevailing cultural norms and financial conditions.

    In other words, I think people and businesses should be equalized: What a business pays for “shelter” is 100% deductible, what it pays for its supplies is 100% deductible, what it pays for services (labor) is 100% deductible, what it pays for transportation (of its goods or its people) is 100% deductible. I see no coherent reason that businesses should be privileged in this regard, and people should have to pay their expenses with post-tax money.

  10. @TonyC, So you’re saying that even Pharoah, divine emporer that he was, had more sense than trying to tax people at rates above 20% when he could have set the rates as high as he wanted.

  11. @TonyC, becaise all of your policy prescriptions inevitably hand more control, power, and resources over to government.

  12. Correction: In Genesis 47:24, the Bible is obviously not talking to Christians; it is talking to Jews. But yes, 20% income tax is mandated by the Bible, in the Old Testament, to “Pharoah.”

  13. @KD: Trying to create another distraction? On the subject of food safety, I would rather the government do it than not do it. Your insistence on everything being black or white must be debilitating. Food inspection does not have to be 100% effective to be worth doing, it doesn’t have to be 80% effective to be worth doing.

    Obviously the more effective and efficient it is, the better, but I am convinced, by historical fact, that the laws we have on food safety are preventing disease, cancer and death. They aren’t 100% effective, but I don’t really expect any system constraining humans to be 100% effective. Even death-penalty laws and vigorous enforcement of laws against murder do not put an end to murder.

    Given a fixed budget, the goal of the FDA (or EPA, or Medicare, or a police force, or any other government program) has to be to prevent as much harm as possible within that budget. When necessary that is how I judge them, not on the E. coli heading du jour. I want to know whether they devote their resources fairly to the most probable sources of disease and infection. If something slips through, I don’t expect them to be omniscient.

    All of that said, I have already agreed, many times over, to the proposition that our American government is wasteful, corrupt, and criminally controlled by corporate interests. So why would you continually insist on the pretense that I am defending the status quo, when I repeatedly tell you that I am not? Just to deflect attention away from your inability to answer to my LOGIC, by falsely claiming that somehow the current broken rattletrap of American government is the result of my logic, when it is not. It is not a premise you prove, or even support, with any evidence; it is just another disingenuous attempt at deflection and distraction.

  14. @Roco: Don’t get off in the weeds with semantical bullshit. There is solid evidence of taxation on “income” from 5000 years ago; in the form of kings (or emperors, or high priests, or pharoahs, or whatever they want to call themselves) taking a share of crops or hunting bounty for themselves. In Genesis, the Bible tells Christians to pay 20% of their crop to the king. If you just want to ask, historically, how long have people been forced to surrender a share of their work or life to a government, the truth is probably 50,000 years, since the arrival of the modern-intellect humans; but actual hard evidence probably only goes back about 7500 years.

    And I am not counting slavery or forced labor or forced service in a military; the evidence for that goes back further, I am talking about farmers who were taxed on their primary and sole source of making a living; their crops. That was their “income.” The Egyptians and Chinese provide the best records in this regard.

  15. @TonyC, on the subject of food safety inspection, do you really think the states are doing such a great job in that department . Because private firms would never inspect their own food. And government is always looking out for your best interests.

    In the past three years, the government has provided the nation’s schools with millions of pounds of beef and chicken that wouldn’t meet the quality or safety standards of many fast-food restaurants, from Jack in the Box and other burger places to chicken chains such as KFC, a USA TODAY investigation found.

    For chicken, the USDA has supplied schools with thousands of tons of meat from old birds that might otherwise go to compost or pet food.

    McDonald’s, Burger King and Costco, for instance, are far more rigorous in checking for bacteria and dangerous pathogens. They test the ground beef they buy five to 10 times more often than the USDA tests beef made for schools during a typical production day.

  16. Tony C:

    good idea, let people make up to $100 million tax free and tax the rest at 100% I am down for that. Hell I’ll even be willing to go down to $50 million but only tax up to $100 million at 55% then after 100 million at 100%.

    See I am easy to negotiate with. Hell I just bent over for your proposal and gave you more than you wanted, and you call me unreasonable?

  17. @TonyC, “Aren’t you the one that said all taxes are theft?” Wasn’t me. See what Roco said.

    The problem isn’t that people will stop taking risks (though eventually they will if the tax rate is high enough), it’s that they will reduce the risks they will take which will reduce the capital in the system as people opt for tax-free investment vehicles like munis.

    Your last idea is better than your others because the high tax rates will affect almost no one.

  18. @Roco: I argue against anarchy because it is the only logical consequence of your philosophy (and KD). The position that taxes are theft and that the majority cannot compel the entire population makes it impossible to collect a tax, or set a tax, or anything else. Once a population reaches a million people, it is impossible to get everybody to agree on anything, period, and that does not even address the problem of new adults joining the society every day, or people changing their minds.

    If the majority cannot compel the whole, then no taxes will ever be assessed, no government will ever be formed, and no regulations will ever be passed. Regulations constrain somebody and prevent them from doing something that was formerly legal. How do you determine it is necessary to outlaw something that was legal? Who decides, if not the majority? A king? A judge? A professor? WHY THEM?

    Your philosophy that being compelled to pay for government is extortion or theft is simply a non-starter, there is no ultimate conclusion from there except Mad Max territory, armed anarchy.

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