The National Debt, the 14th Amendment, and Presidential Authority to Act

July 11, 2011

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:

But without such attempts at public education, preferably in a nationwide address addressed to the greatest potential crisis since September 11, he allows all of this to be reduced to ‘pure politics,’ with the Constitution serving only as a ‘suicide pact.’ Will that be his legacy to American constitutionalism?

During a town hall meeting conducted via Twitter last week, President Obama sidestepped the constitutional question, saying, “I don’t think we should even get to the constitutional issue. Congress has a responsibility to make sure we pay our bills. We've always paid them in the past. The notion that the U.S. is going to default on its debt is just irresponsible …”

And during a news conference today in which he called on Congress to “pull off the Band-Aid; eat our peas,” he did not address the constitutional issue except to say, “We cannot threaten the United States' full faith and credit for the first time in our history.”

For more about the Fourteenth Amendment and the public debt, see a question-and-answer session with Indiana University Law School professor Gerard Magliocca in The Washington Post, listen to a recent interview on NPR with George Washington University law professor Jeffrey Rosen, and visit the ongoing conversation about this issue at Balkinization.

[Photo courtesy of Matthew G. Bisanz]