During the impasse over whether the United States Congress should have raised its debt limit by August 2nd in order to pay for debts already incurred, many began to argue that the President could raise the debt limit on his own under the authority of the 14th Amendment, or through other emergency authorities. Section 4 of the 14th amendment reads: “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 main idea in support of unilateral executive action is that the validity of the public debt cannot be questioned. If Congress questions it by allowing the US to default, then, the argument goes, the President has the 14th Amendment authority to unilaterally raise the debt ceiling. Many oppose these arguments on legal grounds, saying that only Congress has the 1st Amendment right to raise taxes and pay debts. While a deal was ultimately struck on August 1 between Congressional leaders to cut spending by 2.4 trillion in exchange for raising the debt ceiling, many Democrats still argued for the President to unilaterally raise the debt ceiling to avoid such draconian Republican measures. For the historical record, debate will continue to rage over whether passing the legislation was better than the President taking solo action. The pros and cons are considered below.
“Section 4 states: ‘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 language seems quite clear to me that the validity of the public debt of the United States shall not be questioned if authorized by law. Therefore, those who are sworn to uphold the law who do question raising the debt limit so we can pay obligations already incurred, and as authorized by law, are in violation of their oath of office. Those who refuse to vote to raise the debt limit, unless certain concessions are made by the opposing party, are violating the Constitution of the United States. A bill that has been incurred, as authorized by law, is a bill that must be paid. No questions! So, the president should have stepped in and insisted that the bills get paid.”
The Supreme Court ruled only once on Section 4 of Amendment 14, in the depths of the Depression, in Perry v. United States: “The Constitution gives to the Congress the power to borrow money on the credit of the United States … Having this power to authorize the issue of definite obligations for the payment of money borrowed, the Congress has not been vested with authority to alter or destroy those obligations.” Now that Congress has borrowed money and incurred debt, it cannot, under the Constitution and according to the Supreme Court, shirk that responsibility. If it does, the President has the authority to enforce the Constitution and raise the debt ceiling.
“[Section 4] was meant to ensure the payment of Union debts after the Civil War, and to disavow Confederate ones. But it was written in broader terms and extends well beyond those particular obligations.”
The 14th Amendment was designed as a fail safe mechanism, providing executive, or otherwise, authority to ensure that the US never defaults on its loans. This makes sense, and the language of the 14th Amendment indicates it was designed to have such a broad function.
Former President Bill Clinton told The National Memo in late July: “I think the Constitution is clear, and I think this idea that the Congress gets to vote twice on whether to pay for [expenditures] it has appropriated is crazy. [Raising the ceiling] is necessary to pay for appropriations already made. So you can’t say, ‘Well, we won the last election and we didn’t vote for some of that stuff, so we’re going to throw the whole country’s credit into arrears. […] The validity of the U.S. public debt shall not be questioned.”
Former President Bill Clinton said to the National Memo that he would, if in Obama’s position, use the 14th “without hesitation, and force the courts to stop me.”
“One portion of Section 4 of the 14th Amendment is that which some Democrats say authorizes the President to raise the national debt cap by executive order: ‘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.’ The rest of the section, the part that is not being talked about or aired in the media is important in understanding the history and intent behind the portion being bandied about by Democrats: ‘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.’ One need not be a constitutional lawyer to see after reading Section 4 in its entirety that the 14th Amendment was post-Civil War Reconstruction legislation. As a matter of record, the National Archives notes that the amendment was passed by Congress June 13, 1866 and it was ratified July 9, 1868. The section clearly pertains only to public debts incurred during the Civil War, not to all public debts. The section differentiates the validity of debts run up by the Union and any incurred by the Confederacy, making it clear that there was no obligation assumed to pay the latter by either the federal government or any state. It is also worth noting that the section doesn’t authorize the president specifically to do anything.”
“If the 14th Amendment transfers debt power from the congress to the president, then why doesn’t it mention the president, and why does it explicitly mention congress? The locus classicus of Congressional jurisdiction over public debt is in Article 1, Section 8. But is that jurisdiction rescinded in the 14th Amendment? No way. In fact it is even reiterated in the 14th Amendment – twice! If the presidential sycophants had bothered to read the section immediately following the section which they have been quoting, they would have seen this: ‘The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.’ Obama’s knee-pad brigade never seems to quote that section. But even the section which they do quote makes the same point clear. ‘The validity of the public debt of the United States, authorized by law …shall not be questioned.’ In other words, the only debt protected by the 14th Amendment is the debt authorized by law, that is by the legislative branch. If the framers of the 14th amendment somehow meant it to transfer borrowing authority from Congress to the President, why didn’t they say so in the ratification debates?”
“If the framers of the 14th Amendment intended to amend Article 1, which gave that power to the congress, why did they not in the official text of the Constitution show it as an amendment to article 1? The official text of the constitution notes the places in which amendments to the original text supersede it. For example, the 13th Amendment abolishes slavery and the framers of that amendment went back to the sections that were amended and inserted parenthetical notices of the change. They did so with all of the other sections of the 13th and 14th amendments, adding parenthetical statements to whichever earlier section of the constitution was being amended, but they made no such change to the Article 1 borrowing powers of the Congress. The reason they did not change the text is because they did not change the powers.”
“Our argument is not based on some obscure provision of the 14th amendment, but on the necessities of state, and on the president’s role as the ultimate guardian of the constitutional order, charged with taking care that the laws be faithfully executed. When Abraham Lincoln suspended habeas corpus during the Civil War, he said that it was necessary to violate one law, lest all the laws but one fall into ruin. So too here: the president may need to violate the debt ceiling to prevent a catastrophe — whether a default on the debt or an enormous reduction in federal spending, which would throw the country back into recession.”
“A deadlocked Congress has become incapable of acting consistently; it commits to entitlements it will not reduce, appropriates funds it does not have, borrows money it cannot repay and then imposes a debt ceiling it will not raise. One of those things must give; in reality, that means that the conflicting laws will have to be reconciled by the only actor who combines the power to act with a willingness to shoulder responsibility — the president.”
“Just as President Lincoln issued the Emancipation Proclamation at a time of emergency in our Nation’s history to free those who were enslaved during the Civil War, today you face a looming calamity that in some respects is just as grave.”
Franklin D. Roosevelt in his first inaugural address in 1933, addressing his plans to confront the economic crisis, he hinted darkly that “it is to be hoped that the normal balance of executive and legislative authority may be wholly equal, wholly adequate to meet the unprecedented task before us. But it may be that an unprecedented demand and need for undelayed action may call for temporary departure from that normal balance of public procedure.”
Adam Winkler, a law professor at the University of California, Los Angeles: “To have standing to challenge a governmental action, you must show that you have suffered some injury from that action, and it’s hard for someone to show such an injury.”
Adam Winkler, a law professor at the University of California, Los Angeles: “If Congress acted as a unified body, and claims that the president has usurped their authority, then it may have some standing. But it would have to be a joint resolution. And this Senate would almost certainly block it.”
Article 1 of the Constitution: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow money on the credit of the United States…”
“Raising the debt ceiling by executive order could provoke impeachment The U.S. Constitution clearly sets out the functions and authorities of the three branches of government. Article 1, Section 8 establishes the powers reserved to Congress. Included among the powers are: ‘The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States…to borrow money on the credit of the United States…’ Congress alone has the legal authority to extend the borrowing authority of the federal government. If the president chose to raise the debt limit on his own by use of executive order he would be guilty of exceeding the constitutional powers of the executive branch and of usurping the powers reserved to Congress. A historical document about the impeachment process, ‘Constitutional Grounds for Presidential Impeachment, Provisions in the Constitution that are Relevant to Impeachment and Past Impeachment Inquiries’ provides the details behind presidential impeachment proceedings including that of President Andrew Johnson, the first president to face impeachment.”
Republican Congressman Tim Scott (SC) said bypassing Congress on the debt ceiling is an “impeachable offense.”
Rep. Michele Bachmann (R-Minn.): “The president is prohibited to [raise the debt ceiling]. If he had the power to do that he would effectively be a dictator.”
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