Posts Tagged ‘Presidency’

Fourteenth Amendment Re-Redux

Sunday, 13 January 2013

Perhaps I'm a Constitutional hipster, in-so-far as I was talking about section 4 of the Fourteenth Amendment before it was cool to do so. After it had become cool, I felt moved to explain

[The Fourteenth Amendment] is indeed [the law that empowers the President to increase the ceiling] — where the only way not otherwise in violation of the Constitution to pay debt that has come due is to borrow beyond the existing limit. If the debt can be paid in some other way, then no special authority can be found for the President in section 4.

[…] The President doesn't get to say that he or she must raise the limit to continue funding institutions to which he or she can apply profound and moving terms, unless those institutions are indeed Constitutionally mandated.

With talk of the President raising the borrowing limit by decree again heating-up, I feel moved to labor aspects of what I'd earlier explained.

As debt comes due, for which sufficient funding has not been allocated, the Federal government can do one or more of five things:

  • Default.
  • Increase tax collections.
  • Decrease other expenditures to allocate more revenue for debt service.
  • Liquidate assets.
  • Engage in new borrowing to service the debts from previous borrowing.
Advocates of the President raising the ceiling by decree want to pretend that the Constitutional prohibition of the first of these five options empowers the President to effect the last of these options by decree. But there would be three other options; it is appropriate to ask why the President wouldn't instead be required to choose one or more of the other three.

And, if a decision must be made amongst some or all of the four options not prohibitted by section 4 of the Fourteenth Amendment, it is not evident that it is the President's decision to make, even if the Congress will not. In the absence of Constitutional guidance, there is no apparent reason that abdicated legislative responsibility should go to the executive branch as opposed to the judicial branch.

Fourteenth Amendment Redux

Saturday, 9 July 2011

Back in May of 2010, I posted an entry about the Fourteenth Amendment to the US Constitution and the national debt. I'm not sure that readers found that entry particularly interesting at the time, but it gets an ever-increasing number of hits, as the United States approaches default, and as parts of the political left have begun drawing attention to the Amendment. More specifically, parts of the political left have claimed that the Amendment actively requires Congress to increase the debt ceiling, and other parts have claimed that the Amendment empowers the President to increase the debt limit without consent of Congress. It's that latter claim that I will now examine.

Let's return to the actual language of section 4:

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.

(Underscores mine.) Now, an important phrase here is authorized by law; the question is of how a debt as such comes to be authorized by law.

The Constitution itself is law, superior to any-and-all further legislation. It is the Constitution that creätes the Presidency. Before and after the Fourteenth Amendment, the Constitution does not invest any law-making authority in the Presidency beyond what can be said to exist in ability to negotiate treaties with foreign powers (and these treaties must be ratified by a two-thirds majority of the Senate), and Congress has not delegated to the Presidency the authority to increase the debt ceiling.

So the question truly is of whether and when the Fourteenth Amendment might, as parts of the political left claim, be itself exactly the law that empowers the President to increase the ceiling. And the answer is that it is indeed that law — where the only way not otherwise in violation of the Constitution to pay debt that has come due is to borrow beyond the existing limit. If the debt can be paid in some other way, then no special authority can be found for the President in section 4.

And there is the rub. The President doesn't get to say that he or she must raise the limit to continue funding institutions to which he or she can apply profound and moving terms, unless those institutions are indeed Constitutionally mandated. The political left will find none of its distinguishing programmes amongst these institutions. (And, should they bother to read what's actually there, the political right would find that many things that it regards as essential are not actually required by the Constitution.)