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The brilliant Robert Hockett of Georgetown and Cornell shows us five reasons, in addition to the Fourteenth Amendment, why the debt ceiling law is unconstitutional and void.*
Interestingly, the story starts with Richard Nixon, who in 1974 decided that he did not want to spend funds allocated for certain programs he did not like. This was called impoundment.
Congress did not like this encroachment on its power of the purse, and passed a law called The Congressional Budget and Impoundment Control Act of 1974. Under this act once a budget and the spending laws carrying it out are passed,
Since the President is prohibited under this regime from not spending what the budget mandates he spend, the regime effectively mandates that he borrow any time mandated spending exceeds mandated revenue.
This puts the debt ceiling law of 1917 directly at odds with the impoundment control law of 1974. Under the first, the president may not pay debts over a certain amount. Under the second, president must pay all debts incurred under spending pursuant to the budget.
As Hockett writes,
the 1917 ‘debt ceiling’ as presently wielded like an AR-15 by a rump faction of the House Republican Caucus is actually no more than a leaky water pistol.
Here are the six reasons this is true:
- If the President (the Treasury) fails to pay debts incurred by duly passed laws, he would violate the “Take Care” clause of the Constitution, requiring the President “to take care that the Laws be faithfully executed.” Article II, Section 3.
- If the president prioritizes certain payments over others, because of the debt ceiling, he would be violating the “presentment clause” of the Constitution. Article I, Section 7, which prohibits “piecemeal” passage or enforcement of laws.
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The Fourteenth Amendment, under which “[t]he validity of the public debt of the United States, authorized by law... shall not be questioned.” Hockett notes here that the 14th amendment was passed to prevent the former confederacy from abrogating civil war debts incurred by the union. And today, roughly the same former confederacy states, are the ones attempting to abrogate debts incurred by the union.
- When interpreting laws, courts apply the “later in time” rule, under which any conflict between an earlier law and a later law must be resolved in favor of the later law.
- Courts also apply the “absurd result” rule, under which interpretation of a law that produces such a result (default) must be mistaken.
- Under the “Constitutional Avoidance” principal, “when a legal provision – either as written or as it would be applied – can be construed in more than one way and one such way would raise a Constitutional issue,” the interpretation should be mistaken. Here, because the R Position on the debt ceiling conflicts with the 14th amendment it should be disregarded.
Lawyers present cases “in the alternative.” If one argument loses, the Court will consider the others. Professor Hockett (and I) believe even this Supreme Court would not reject all six arguments.
* If not blocked by a paywall, I strongly urge you to read the whole article.