Can Obama declare the debt ceiling unconstitutional?

By Felix Salmon
July 5, 2011
brandished the Constitution of the United States while declaring -- quite rightly -- that it is unconstitutional to question US debt payments.

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Back in late May, Tim Geithner literally brandished the Constitution of the United States while declaring — quite rightly — that it is unconstitutional to question US debt payments. A few commentators, Bruce Bartlett among them, reckon that this sets up a possible highly-dramatic endgame to the debt-ceiling negotiations:

The president would have constitutional authority to take extraordinary measures to protect the public credit and prevent a debt default even if it means disregarding the debt limit, which is statutory law subordinate to the Constitution…

According to a June 28 report in the Huffington Post, Democratic senators, including Chris Coons of Delaware and Patty Murray of Washington, are warming to the constitutional option for breaking the deadlock on the debt limit and preventing a default. At a press conference on Wednesday, President Obama was asked directly about this by Chuck Todd of NBC News and he refused to rule it out. It goes without saying that provoking a constitutional crisis over the debt limit is a bad idea, but a debt crisis would be worse. At a minimum, the Fourteenth Amendment greatly strengthens the president’s hand in getting the debt limit increased in a timely matter. He should not be afraid to use it.

This would be a very dangerous game to play. Congress doesn’t need the debt ceiling to shut down government operations — there’s the budget, too. The 2011 Continuing Resolution expires in less than three month; given that the Republicans in Congress would certainly take any appeal to the Constitution as a declaration of political war, the probability of a government shutdown would skyrocket.

On top of that, the substantive business of government would surely come to an end as the Republicans responded to a Constitutional override with impeachment proceedings of their own, on the grounds that any debt issued without Congressional authorization will have dubious legal standing and could be an impeachable offense. If Obama wanted to guarantee enormous amounts of political heat and absolutely no meaningful legislation getting passed for the remainder of his first term in office, he could hardly go about it a better way.

Which might explain why Geithner hasn’t been pulling a copy of the Constitution out of his breast pocket for the past six weeks or so. When the executive branch doesn’t have control of Congress, it always dreams of some magic machine which will let it simply do what it wants anyway. And in the eyes of many centrists who understandably care about depoliticizing the repayment of government debt, the Constitution is a wonderful gift in that regard. And like most wonderful gifts of lore, this one is best left untouched.

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