14th Amendment a debt safeguard

The Framers of the Fourteenth Amendment might not be surprised that members of Congress would play politics with the country’s fiscal integrity, but they would be surprised that they might be allowed to get away with it.


At the same time that the Framers of the Civil War Amendments were amending the Constitution in a number of fundamental ways — abolishing slavery, ensuring equal protection of the law, and protecting the right to vote — they made another important change that was designed to ensure that payment of the national debt would not be subject to, as one leading senator of the time put it, “the varying majorities which may arise in Congress.” That amendment should help prevent the government default that will occur Oct. 17 if congressional Republicans, the same ones responsible for the current government shutdown, refuse to raise the statutory debt limit.


By statute, Congress has imposed a limit, or ceiling, on how much the government can borrow to cover its expenses. On Oct. 17, the government will hit that ceiling because incoming revenues will be insufficient to cover expenses that Congress has already authorized. It’s as if a person with only $25 was told to spend $50, but was also told he couldn’t do anything to make up the difference. Something’s got to give. At that point President Obama will face a stark choice — he can ignore the debt ceiling and continue meeting the government’s financial obligations, or he can abide by the debt ceiling and stop paying at least some of the government’s bills.


The Framers of the Fourteenth Amendment made clear which option he should choose. Section 4 of the Fourteenth Amendment, the “Public Debt Clause,” expressly provides that “[t]he validity of the public debt of the United States, authorized by law, . . . shall not be questioned.” This broad language makes clear that the country must pay its debts; the failure to do so will call into question the “validity of the public debt” and impair the fiscal integrity of the nation — exactly what the Framers of the Fourteenth Amendment were trying to prevent.


As Jacob Charles details in the Duke Law Journal, the Framers specifically chose language that would protect the national debt broadly, rejecting alternative proposals that would have only repudiated the Confederate debt or protected only the debt incurred by the Union during the Civil War. According to Charles, one Republican senator who proposed broad language similar to the language that was ultimately adopted thought “it would ‘be of incalculable pecuniary benefit to the United States.’” According to the senator, “ ‘every man who has property in the public funds will feel safer when he sees that the national debt is withdrawn from the power of a Congress to repudiate it and placed under the guardianship of the Constitution than he would feel if it were left at loose ends and subject to the varying majorities which may arise in Congress.’ ”


This concern over the creditworthiness of the United States goes back to the founding. Treasury Secretary Alexander Hamilton issued a “Report on Public Credit” for the Washington Administration, in which he observed that “[i]n nothing are appearances of greater moment than in whatever regards credit.” In other words, a House majority committed to playing politics with the nation’s public credit is a terrible idea and should not be allowed to happen.


Spokesmen for President Obama have recently stated that the Fourteenth Amendment doesn’t give him the power to ignore the debt ceiling. But they didn’t explain why that is, or why it would be better to follow the congressional mandate about the debt ceiling than conflicting congressional mandates about expenditures they wanted made and bills they wanted paid.


As Michael Dorf and Neil Buchanan have argued in the Columbia Law Review, Congress has placed the president between a rock and a hard place; he literally cannot follow all of Congress’s directions at once and thus must choose which congressional mandates to follow. Even if the President thinks the history of the public debt clause isn’t clear, it still seems preferable to set aside the debt ceiling than to ignore Congress’s mandate to pay the nation’s bills. At minimum, the Fourteenth Amendment suggests a constitutional basis for ignoring the debt ceiling; nothing in the Constitution provides reason not to follow Congress’s mandate that the nation’s bills be paid. And, as Dorf and Buchanan argue, well-established principles of legal interpretation, as well as practical considerations, suggest the same result.


Although Republican game-playing may not leave President Obama with any good option, setting aside the debt limit is plainly the least bad option. The Framers of the Fourteenth Amendment did not want members of Congress to play politics with the national debt. The president should not let them.


Brianne Gorod is appellate counsel at Constitutional Accountability Center, a progressive think tank and law firm. Ms. Gorod previously served as a law clerk to Supreme Court Justice Stephen Breyer and as an Attorney-Adviser in the Office of Legal Counsel at the Department of Justice.




This piece appeared in at least the following additional outlets:


*  Detroit (MI) Free Press (online)

*  Lancaster (OH) Eagle-Gazette (online)

*  Lansing (MI) State Journal (online)

*  Nashville (TN) Tennessean (online)