Separation of powers

Former President Bill Clinton said he would exercise the constitutional power to raise the nation’s debt ceiling “without hesitation” if he were faced with a default while serving as president, and would “force the courts to stop me.”

“I think the Constitution is clear and I think this idea that the Congress gets to vote twice on whether to pay for [expenditures] it has appropriated is crazy,” Clinton said during an interview Monday night with The National Memo.

President Obama has sidestepped the question of whether he would invoke the Constitution in the event an agreement on deficit reduction is not reached, saying, “I don’t think we should even get to the constitutional issue. … The notion that the U.S. is going to default on its debt is just irresponsible.”

But several scholars have weighed in on whether the Constitution offers a solution should Congress fail to act. Yale law professor Jack Balkin and Harvard law professor Laurence Tribe have agreed that Section 4 of the Fourteenth Amendment does not authorize the President to act, but Tribe and others have noted that Congress’s behavior in “acting in a way to call the public debt into question” may be unconstitutional, even if there is no clear remedy other than to hold Congress publicly accountable.

In a new blog post, Ohio State University law professor Peter Shane, who specializes in executive power, calls the argument that the President has the power under the Fourteenth Amendment to raise the debt limit “implausible.” He suggests, however, that there is some statutory authority available to the President that would enable him to “provide for contingencies” by deciding for himself in what areas government spending should be deferred in order to keep needed functions operating without borrowing money.

He concludes:

As Congress and President Obama continue their negotiations on a deficit reduction deal with a looming Aug. 2 deadline, politicians and scholars have continued to question whether the Constitution offers a solution if Congress should fail to act.

The idea that a statutory limit on the federal debt could be unconstitutional if it caused the U.S. to default on payments initially gained traction following an April column in The Atlantic in which University of Baltimore law professor Garrett Epps envisioned an address President Obama might give announcing his refusal to observe the statutory debt ceiling on constitutional grounds.

Several senators have since endorsed the idea that U.S. default on our debts could violate Section 4 of the Fourteenth Amendment, and a vibrant discussion has developed among academics and commentators. Many have agreed that Congress’s behavior may be unconstitutional. But they have also suggested that the President is unlikely to, and probably shouldn’t, invoke this constitutional argument and flout the will of Congress.

In a series of posts for Balkinization, Yale law professor Jack Balkin has explained that although he believes Section 4 “was designed to prevent what the Republican leaders of Congress are currently doing, it is not clear that anyone has standing to force Congress to live up to its constitutional duty.”  

In the extreme and unlikely scenario that all other options for preventing a default on the public debt had been exhausted, he continues, the President could act pursuant to “emergency powers” inherent in the presidency, possibly taking action of “very dubious legality” because the President acts when no one else will act.

Harvard law professor Laurence Tribe also argues in an op-ed in The New York Times that the Constitution “only grants Congress — not the president — the power ‘to borrow money on the credit of the United States.’”

“Only political courage and compromise, coupled with adherence to traditions that call upon Congress to fulfill its unique constitutional duty, can avert an impending crisis,” Tribe writes.

In another post for Balkinization, University of Texas at Austin law professor Sandy Levinson suggests that Obama take the alternative route of educating the public “about the unconstitutional behavior of his Republican adversaries.” But, “if there is anything we seem to know about him, it is that he will be extremely reluctant to do so."

He continues: