The Debt Ceiling Standoff Is Unconstitutional, and the President Should Say So

At President Obama’s press conference on Tuesday, the White House press corps once again pushed the President on whether the Fourteenth Amendment gives him the authority to end the current standoff by simply ignoring the debt ceiling and continuing to pay the nation’s bills.  Once again, the President demurred, no doubt delighting groups like the Third Way that have laid out the case against unilateral action by the President.  At the same time, many commentators on the left have actually blamed the current mess on the Constitution itself – with its complicated, inefficient system of checks and balances, separation of powers, and all that.  Despite hints of progress in recent debt ceiling talks, threats remain and future standoffs loom.  With Speaker Boehner and his Tea Party allies willing to risk a default on the nation’s debt over and over again, this isn’t the time for the President and his progressive allies to run from the Constitution.  It’s time for them to embrace it.

In one sense, the critics on the left are exactly right.  Within our constitutional system, little can be accomplished without compromise.  As a result, change happens slowly, if at all, as each piece of legislation must survive the House, the Senate, the President, and, often, the Supreme Court – quite the Rube Goldberg.  It’s little wonder, then, that, with our government held hostage by an extremist minority, some have taken aim at the system itself – and the Founders who designed it.

However, these critics understate the degree to which our system’s true pathologies are of our own making – rather than inherent in the Founders’ design.  While it’s certainly true that our system was designed to act slowly, generations of policymakers put additional obstacles in place – obstacles that have made our government increasingly, well, ungovernable.

For instance, consider President Obama’s landslide victory in 2008.  During his first two years in office, he and his progressive allies in Congress passed landmark legislation like the Affordable Care Act and Dodd-Frank.  While these laws may fall short of all that the President wanted and while the slow-moving legislative process may have harmed him politically, that was more a function of the filibuster than anything else – a governing obstacle alien to the Founders’ preference for majority rule and, under the Founders’ Constitution, removable at will by a determined governing majority in the Senate.

More importantly, take our current crisis and the looming threat of a government default.  Once again, the debt ceiling is a product not of the Constitution, but of a later generation of lawmakers.  Furthermore, the Constitution’s text itself – namely, the Public Debt Clause of the Fourteenth Amendment – provides a strong textual rebuke to the Tea Party’s cavalier attitude toward the creditworthiness of the United States.  It reads as follows: “The validity of the public debt of the United States, authorized by law, . . . shall not be questioned.”  Far from fueling the Tea Party blockade, the Constitution ought to shatter it, if only the President, the press, and the wider public would put the constitutional onus where it belongs – on Speaker Boehner and his Tea Party allies.

Of course, conservatives have long understood the Constitution’s power in public debates.  For decades, they’ve attacked liberal “activist” judges for ignoring the Constitution.  And, for over three years, Republicans and their Tea Party allies have relentlessly and wrongly attacked the Affordable Care Act and even some foundational statutes like the Civil Rights Act of 1964 as assaults on the Constitution.  By vacating this field, the President and his progressive allies only strengthen the force of their opponents’ arguments.

Moving forward, the President should use the Fourteenth Amendment’s text and history to turn the tables on Speaker Boehner and his Tea Party allies.  Whether or not the President has legal authority to act alone to end the debt ceiling standoff – a subject of considerable debate among legal commentators – the Constitution’s text and history is clear on at least one point:  Members of Congress shouldn’t hold the public debt hostage to their policy demands.

Throughout his press conference, the President was clear about his bottom line in this debt ceiling standoff: “We can’t make extortion routine as part of our democracy.”  This was precisely the concern that the Reconstruction Republicans had in mind when they framed and ratified the Fourteenth Amendment and its Public Debt Clause.

Following the Civil War, the Republicans in Congress feared that representatives from the former Confederacy would use the threat of a government default to roll back many of the important civil rights gains made during Reconstruction.  In other words, they feared that the former Confederates would hold programs popular with Republicans (like soldiers’ pensions) hostage to Southern policy demands.  Through the Public Debt Clause, the Fourteenth Amendment’s Framers like Benjamin Wade saw to it that the national debt was “placed under the guardianship of the Constitution” rather than “subject to the varying majorities which may arise in Congress.”  (For a more detailed account of this history, please see here, here, here, and here.)

So, the next time the President is asked about his authority under the Public Debt Clause to end the current debt limit standoff, he should remind the American people of this forgotten part of our history and fire the following question right back at Speaker Boehner:  Mr. Speaker, how do you square your current tactics – which call the public debt of the United States into question – with the U.S. Constitution?  Far from deserving blame for the current mess, the Constitution offers us a way out.