Growing increasingly pessimistic about the prospects for a deal that would raise the debt ceiling, Democratic senators are revisiting a solution to the crisis that rests on a simple proposition: The debt ceiling itself is unconstitutional.
"The validity of the public debt of the United States, authorized by law... shall not be questioned," reads the 14th Amendment.
"This is an issue that's been raised in some private debate between senators as to whether in fact we can default, or whether that provision of the Constitution can be held up as preventing default," Sen. Chris Coons (D-Del.), an attorney, told The Huffington Post Tuesday. "I don't think, as of a couple weeks ago, when this was first raised, it was seen as a pressing option. But I'll tell you that it's going to get a pretty strong second look as a way of saying, 'Is there some way to save us from ourselves?'"
It's always been clear that at a policy level, the debt ceiling makes absolutely no sense. If Congress wants to restrain debt, then it shouldn't pass the laws that create the debt, but it's completely schizophrenic for Congress to simultaneously pass legislation that limits the federal debt while passing other legislation that would add to the federal debt.
What hasn't been clear is how to resolve the conflict between the statutory debt limit and statutory fiscal policy, and with the debt limit rapidly approaching, it's become clear that it's an issue that must be resolved.
I'm not a lawyer, but given that the plain language of the Fourteenth Amendment is that public debts must be honored, it would seem that if there were conflict between making good on those debts and staying within the debt ceiling, the Constitution would require the government to make good on its debts, trumping the debt ceiling. Given that the financing of a program like Social Security is structured as a public debt, it seems that at a minimum, the debt ceiling doesn't apply to much of the federal budget.
Again, I'm not a Constitutional law expert here, but the key point is that there is an open question about what legal obligations the Obama administration would face if Congress fails to raise the debt limit. Not only has Congress passed legislation that would come into conflict, but the Constitution itself appears to conflict with that legislation as well. Because these are unsettled issues, the White House has a significant degree of latitude in choosing a path forward if Congress fails to raise the debt limit. It certainly shouldn't limit its options by automatically assuming that the debt limit itself is the controlling legal mandate.