Does Congress Have A Constitutional Obligation To Raise The Debt Ceiling?

-Submitted by David Drumm (Nal), Guest Blogger

Section four of the Fourteenth Amendment, known as the public debt clause, states that “the validity of the public debt of the United States, authorized by law … shall not be questioned.” The clause was included to prevent Southerners or their sympathizers from preventing payments owed to Union soldiers or their widows. However, the language goes beyond the narrow issue of Civil War debts.

If Congress does not raise the debt ceiling, the United States will not be able to service its outstanding debt, that is,  pay interest to bondholders. Congress would indicate it is unwilling to pay the public debt. Unwillingness to pay a debt has the same effect as an denial of the debt obligation, effectively a repudiation of the debt.

In the New York Times Professor Laurence Tribe wrote:

The Constitution grants only Congress — not the president — the power “to borrow money on the credit of the United States.”

In response to Professor Tribe’s op-ed, Treasury’s General Counsel George W. Madison wrote “Congress has an obligation to ensure we are able to honor the obligations of the United States.” That obligation is a constitutional obligation.

President Obama, always willing to let a political opportunity slip though his fingers, has not clearly denounced the Republican strategy on constitutional grounds. It is unfathomable that Obama would decry the effects of defaulting on the national debt and then not use every political weapon to ensure such a default doesn’t occur.

The debt issue should be framed as the President defending the Constitution and the Republicans violating the Constitution. That would generate the kind of public pressure that Republicans respond to.

H/T: Jack Balkin.


46 thoughts on “Does Congress Have A Constitutional Obligation To Raise The Debt Ceiling?”

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  2. Sean: that part of the 14th was to make it illegal for the government — not any specific body of the government — from defaulting.

    It DOES NOT, in any way, whatsosever, give one body of government power it does not already have.

    If what you said were true, then the Supreme Court could raise the debt ceiling AND pay off the debts themselves! And Congress could take over the Treasury and pay the debt obligations if Geithner didn’t do it. It’s just wrong: that’s not how it works, that was never the intent, and it simply doesn’t give the Executive or any other branch of the government any power it doesn’t already have.

    You’re wrong, and my guess is that at least 6, if not all 9, of the members of the Supreme Court would agree with me. I can see maybe Breyer agreeing with you, and maybe Ginsburg and Sotomayor. It’s hard to see anyone else buying it, certainly not the four conservatives, and almost certainly not Kennedy either.

    “Therefore what the current extreme right wingers are actually acting in violation of that constitutional amendment”

    That’s incorrect, Sean. It could only possibly be true if we didn’t have the resources to pay our debt obligations … and we do. We have more than enough revenue to pay our interest and refinance our maturing obligations.

    If we didn’t have enough revenue coming in to pay our debt obligations, such that we would default, then you might have an argument … but only that Congress was violating the Constitution, not that the President has any power to do anything about it. (And even then it would be a weak argument: the government could still sell off assets and so on to pay the debt obligations.)

  3. Sean,
    I agree that the 14th amendment might give the President authority to unilaterally raise the debt ceiling, but I am not sure that the Supremes will agree.

  4. According to my reading of the Fourteenth Amendment, Section Four is that this amendment was pacifically placed in the constitution to PREVENT a one body of congress from holding another body or the presidency hostage by using the debt.

    Read it. Therefore what the current extreme right wingers are actually acting in violation of that constitutional amendment and the President has the authority and RESPONSIBILITY to step in and use the language of the fourteenth to unilaterally raise the debt ceiling.

    I can see that the Supreme Court, even as biased as they are, can have no other choice but in this particular case to rule in Obama’s favor. It is a crystal clear example of exactly what this amendment was written for.

  5. David Drumm: you are not asking yourself WHY Obama doesn’t do this. I know the answer, and it’s simple: because refusing to increase the debt limit DOES NOT equate to default. If Obama used the 14th Amendment enough, people would crunch the numbers and see for themselves that we have enough revenue to pay off the interest and to refinance the principal without incurring additional debt. Sure, we couldn’t do much else, but the point is that this fact undermines Obama’s lie that no debt increase equals default.

  6. Enter to the play…Grover Norquist. Republicans have signed pledges to Grover Norquist regarding raising or in anyway increasing revenues through tax changes (unless its the poor). When was Norquist elected? What office does he hold? Did the people voting for these republicans know about the pledge and that their vote adheres and justifies the pledge? Is the Pledge an illegal act by the republican’s who signed it. They owe their allegiance to the people of the United States, too the US Government and to the constitution. Not to Grover Norquist. This is creating an underground second government whose intensions are to sabatoge the duly elected government in Wash.

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