Tuesday, June 28, 2011

Debt Ceiling Is Unconstitutional?

This week's edition of Time Magazine posed some interesting issues for discussion about the wording of the Constitution. Perhaps nothing was more interesting than a rather simple comment about the national debt, the debt ceiling talks, and the 14th Amendment. Now, it seems the issue is gaining some serious attention. In a few words, according to the 14th Amendment of the Constitution, "The validity of the public debt, as authorized by law ... shall not be questioned."

The Constitutional scholars could - and probably will - analyze this for years. But, the members of Congress better start wrestling with it now. For, if the administration suspects in any way that these debt ceiling talks are putting the country's fiscal integrity at risk, they may decide the conflict necessitates bold action - that is, declaring the debt ceiling unconstitutional, and proceeding to finance the debt without congressional approval. For those who favor a strict interpretation of the Constitution - and yes that means the Tea Party - it is tough to argue that the government should be limited in any way to accumulate and finance existing debt. Period. Thus, in one reading of the Amendment, this debt ceiling discussion is over.

Time posed the idea that the United States defaulting on its debt is, in and of itself, unconstitutional. The Atlantic Monthly argued last month that the entire concept of the debt ceiling is unconstitutional. The Huffington Post has picked up on the story, and provides some interesting historical context - especially the Supreme Court case of Perry vs. the United States in 1935. Then the Court ruled - setting precedent - that Congress does not have the authority to default on the government's debt. Thus, they have no Constitutional choice but to raise the debt ceiling.

The discussion and threats and posturing and hullabaloo about the debt ceiling need to cease. The government needs to pay its bills, and if doing so requires borrowing more money until revenue goes up or spending goes down, the Constitution seems clear. Pay the bills. Eliminate the debt ceiling.

1 comment:

Anonymous said...

Lawrence Tribe argued for the constitutionality of the debt ceiling in the NY Times. Personally, I found his argument totally uncompelling.

I don't see how Congress can tell the President to execute it's laws which require spending, but not let him issue debt (or create dollars) to do so and not renege on the "full faith and credit" clause.