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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20 comments so far

Obama would likely argue that the Constitution requires him to pay down the debt, legislative ceilings notwithstanding.
I’m skeptical that the Republicans will impeach a president for paying the nation’s bills.
Of course, I’ve been surprised before at the grounds upon which Republicans impeach presidents.

Posted by RZ0 | Report as abusive

Except for one thing, Felix: coordinated action by Congress against Obama for this perceived infraction would amount to Congress saying that the United States not only can be, BUT ACTUALLY IS currently in default on a certain subset of its debt. Would even the Republicans have the gall to carry it that far?

Posted by WHS | Report as abusive

And there’s the point that Matt Yglesias made a few days back: the problem with continually bending to Republicans as these deadlines approach is that they create a precedent under which Republicans threaten to blow up the government every time one of these deadlines approaches. The debt ceiling increase isn’t some unique opportunity for Republicans to take a hostage and make demands — it’s a regularly-scheduled bit of kabuki that occurs many times during most administrations. At least the constitutional option takes that newly-created opportunity off the table for Republicans for good. Otherwise, we can look forward to a repeat of this standoff every two years, ad infinitum (but not really, because eventually, somehow, someway, a default will actually occur).

Posted by WHS | Report as abusive

I see a lot of comments blaming republicans for Obama’s debt, but Obama made the debt and refuses to admit it. He has spent more in his term of office than any president in history, and broken every major promise he made to his supporters. The ONLY time he actually keeps a promise is when the media push him to do so, or he is afraid he will lose votes.

We are a republic, not a democracy. This is not about parities, this is about our future. As it looks now, the people that are building cabins in the woods are right, and we ARE going to have an upheaval that will destroy our nation.

I just wish the people in “power,” would start to remember that we are a republic, and begin to work toward slimming our bloated national government and start representing the people instead of falsely believing that they are the leaders of our nation.

Posted by Patriot_70 | Report as abusive

Riiight … cuz Bush left the fiscal house in such great shape when he left office. Not. Keep waving your flags, honey. Doesn’t change the facts.

Posted by SouthernBeale | Report as abusive

Just in case someone asks (ahem, Patriot_70): What did your favorite President do with the federal debt between the first day he took office and the end of his term (or with Obama, the last monthly stat available (May 2011):
Reagan = +185%
Bush Sr. = +55%
Clinton = +37%
Dubya = +89%
Obama = +32%

Posted by GRRR | Report as abusive

I am of the opinion that it is the GOP who declared political war so we might as well have at it.

Posted by silliness | Report as abusive

It’s quite a leap from “the debts can’t be questioned” to “the President can incur new debts without permission from other branches of government”. Not to say that implausible leaps haven’t been made before.

Posted by dWj | Report as abusive

We are just about at the scene in the movie where an old woman fires a shotgun in the air to break up the ruckus.

Who is she? Where are the grownups?

Boehner is no great shakes, but we didn’t elect him to be our negotiator in chief, to knock heads together and make deals happen. I see no leadership skills in this man. And so the pygmies run riot. Well, what did you expect?

Posted by LadyGodiva | Report as abusive

By “this man” I meant Obama.

Posted by LadyGodiva | Report as abusive

Or we could not issue bonds, and just control the fed funds rate via tight interest rates on excess reserves and borrowed reserves, roughly 25 bp above and below the Fed’s desired FFR, respectively.

I wonder how the financial community would like that – no more riskless treasuries to earn interest on.

Posted by djiddish98 | Report as abusive

Of course, I guess that would require another congressional change to the operations of the fed/treasury. So never mind.

Posted by djiddish98 | Report as abusive

Blah, blah, blah. The Republicans already started the war, and they’re determined to make it a war. Oh my God, they might impeach! So what?

You mean the Republicans *didn’t know* when they came up with the budget that it would increase the debt? They already approved the extra debt.

Look, as long as Obama’s in the Whitehouse, the Republicans are going to use every lever they can to wreck the economy and kick him out next year. They’re not concerned about the national interest or governing effectively.

Posted by KJMClark | Report as abusive

That’s a bit sleazy of you, Felix: linking to Bartlett on the 14th amendment without mentioning that it was his colleague Stan Collender who brought up the impeachment argument: http://capitalgainsandgames.com/blog/sta n-collender/2289/senate-dems-touting-14t h-amendment-avoid-gop-ransom-demands-deb t-ceiling-co.

In fact, I can’t see that you are contributing anything to this story at all. You would done better just to refer us all to the Capital Gains and Games blog.

Posted by Greycap | Report as abusive

If Obama is really a statesman, and not merely a politician, he’ll declare that this dept ceiling issue is a “constitutional crisis,” and thus push his agenda thru congress, taxes and all. If Bush was in office, being threatened by the Dems, he, Bush would’ve found a loop hole to get what he wants. Secondly, I also don’t understand why Obama didn’t start a W.P.A. as soon as he became president, just as FDR did?

Posted by Etonian | Report as abusive

“Republicans in Congress would certainly take any appeal to the Constitution as a declaration of political war”… that’s the problem. They already have. The President has to make clear that he is willing to assert his Constitutional prerogative as the Republicans assert the need for a balanced budget amendment. These Republicans only respect strength, time to show it.

Posted by bluestraw | Report as abusive

Felix,

Switching the budget battles from the debt ceiling to appropriations is not a problem.

1) That’s where these fights are SUPPOSED to occur. If the Tea Party wants to pass a budget that decimates entitlement programs while preserving tax breaks for the wealthy, let them. Let them run on that record. By waging this battle as part of the debt ceiling, they are trying to achieve a policy victory without paying the political price for it, and advance the notion that “we can’t afford these”. We can afford these things if we choose to.

2) If the debt ceiling is not raised (or ignored) and the US defaults on its obligations–what happens? Well, we’ve never been there before, but most experts say “major financial catastrophe”. If, on the other hand, Congress refuses to pass a budget and the government shuts down–well, we’ve been THERE before, and while it isn’t desirable, the Republic has survived.

The problem isn’t that the GOP and the administration are having a budget showdown. The problem is that by doing it in the context of the debt ceiling, one side has brought a loaded gun to the table. If it is done in the context of an appropriations debate, as it ought to be, the playing field is level, and the sort of political brinksmanship that we see today simply isn’t available.

Posted by EngineerScotty | Report as abusive

A declaration of political war? They’ve been at war with him and the government for a while now. They’re holding the full faith and credit of the United States hostage for their political agenda. Political war doesn’t get worse than that.

Posted by DerekYoung | Report as abusive

“On top of that, the substantive business of government would surely come to an end…”

I think that already happened, as soon as Obama became president.

“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.”

As opposed to what, handing the government over to the Republicans? They don’t want the government to work.

Posted by Kunst | Report as abusive

The 14th Amendment has never been interpreted by the United States Supreme Court to grant autocratic powers in the Executive Branch. Who in their right mind would believe that the President of the United States could use the 14th Amendment to end the separation of powers thereby authorizing the issuance of monetary obligations against the will of the People’s Branch, i.e., Congress. I think it is about time to require that the U.S. Constitution be a course in all U.S. high schools in the hope to prevent these government elitists from deceptively representing the powers of the national govenment to the people.

Posted by RHB3 | Report as abusive
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