In my post yesterday, Public debt of the United States shall not be questioned: the 14th Amendment and the debt ceiling, I wrote:
The President's duty to take care that the laws be faithfully executed applies both to the Constitution and duly enacted legislation of the Congress. The Congress has enacted legislation that will likely be in conflict shortly—the debt ceiling and appropriations that will cause the United States to exceed the debt ceiling. The spending authorizations postdate the debt ceiling enactment.In a piece yesterday, Professor Jack Balkin wrote:
What leeway if any, does the President have with regard to choosing what laws to "faithfully execute" here? In the normal course, the President would have a great deal of flexibility when faced with conflicting legislative directives. However, whether the President wishes to respect the debt ceiling is not the deciding question on this discrete point: the President does not have, in normal circumstances the power to borrow on behalf of the United States. The Constitution provides that power to the Congress. Thus, looking solely at this discrete issue, the President does not have the practical power to ignore the debt ceiling because he does not have the power to borrow on behalf of the United States. (But see the platinum coin option, and whether this constitutes a Congressional delegation of the borrowing power (and whether such delegation is constitutional) to the President).
But what of Section 4 of the 14th Amendment? Doesn't the President have a duty to "faithfully execute" its provisions? Indeed he does. And, should the debt ceiling violate the 14th Amendment, it is my view that the President would have the duty to abide by Section 4 of the 14th Amendment, even if that requires violating the debt ceiling. And if that requires borrowing on behalf of the United States, it is my view that Section4 of the 14th Amendment would so empower the President. (Would the President be able to do this in a practical sense? To be discussed below the fold.)
However, such duty would only arise when the validity of US debt is imperiled, to wit, when it is time to make debt service payments. And before the President could invoke this 14th Amendment power, he would have to, at least in my opinion, exhaust other remedies, including NOT "faithfully executing" the spending appropriations enacted by Congress, and instead insuring that US debt is timely serviced. That raises interesting legal questions, but more importantly, it raises interesting political bargaining questions.
The president's independent constitutional duty to continue to pay the debts of the United States-- including, in particular, interest on government bonds-- is the feature of section 4 that strengthens the president's hand, and not the idea that he could unilaterally raise the debt ceiling. This aspect of the amendment is what most of the debate about section 4 misses. Section 4 does not give the president the power to raise the debt ceiling. But it does give him the constitutional authority to prioritize the payment of the federal debt over other government functions. That is the real source of his power.Professor Balkin is right as far as he goes, but this analysis does not consider the posibility that a point could be reached where the ability to service existing public debt requires the issuance of new debt. What then? Balkin writes:
Many Democrats have argued that it is time for Obama to state that he will invoke section 4 of the 14th amendment and threaten to raise the debt ceiling unilaterally (or ignore it) and instruct the Treasury to issue new debt. But Article I, section 8 gives Congress, not the president, the power to issue debt on the credit of the United States. The president lacks the power to do so on his own--except, perhaps, in the most extreme emergencies, when it would have to be followed quickly by a post-hoc ratification of his actions by Congress. He could not do so in the absence of such an emergency.. [Emphasis supplied.]My take is more conservative than Professor Balkin's - an emergency is not sufficient in my view - it requires the threat of a default on the payment of exisitng US debt to trigger this power in the President. Because I believe this power springs from Section 4 of the 14th Amendment, which is specific in its Constitutional directive.
To define the required emergency broadly opens the door to empowering emergencies such as the need to engage in war, etc., as opposed to limiting the power to issue new debt to situation where the payment of US debt is imperilled. I believe this is a misreading of the constitutional command created by Section 4 of the 14th Amendment.
But I think the more important aspect of this Section 4 of the 14th Amendment argument is being mishandled. To wit, the Republican House is proposing to violate Section 4 of the 14th Amendment. This needs to be a part of the discussion. As Balkin explains:
If the president makes his position on the debt ceiling clear in advance, the Republicans will realize that if they are intransigent all they will succeed in doing is shutting down the government-- which will be wildly unpopular. Knowing this, they will also recognize that they cannot use the debt ceiling as a regular instrument of politics. Of course, preventing this sort of tactic is the original purpose of section 4 of the Fourteenth Amendment. [Emphasis supplied.]At this time, the original purpose of Section 4 of the 14th Amendment is being thwarted as the House GOP is doing that which the original purpose was intended to prevent.
I believe it is imperative that this fact be a part of the conversation right now. Ruling out Presidential action, albeit in an emergency situation, undermines getting this message out. The President and his team are making a mistake in rejecting the use of the 14th Amendment argument (as a point of persuasion at the least).
And the reality is, should the unthinkable occur and the payment of existing US debt be imperilled, the President will have to consider the 14th Amendment argument. The emergency will require it. See also this.