Professor Jack Balkin

  • July 12, 2011

    Jonathan Rauch, in a guest post for The Dish by Andrew Sullivan, joins the discussion over a constitutional solution to the ongoing struggle in Washington to reach a deal to allow the nation to continue paying its debts. He writes that since conservatives are dismissively responding to “the 14th-Amendment option,” be believes there might be something to it.

    Rauch states:

    As you have probably heard, the 14th Amendment says, "The validity of the public debt of the United States...shall not be questioned." In a post-Civil War context, the amendment's framers sought to prevent some political faction—at that time, the South—from refusing to let the government repay its debts. The basic idea of not letting politics hold the debt hostage is certainly relevant to what's happening today, although obviously the situation is different. In any case, whatever the particulars of the amendment's adoption, it clearly suggests that meeting our debt obligations is a constitutional imperative, not merely a statutory one. Otherwise, of course, the amendment wouldn't be there.

    As noted in this post, leading constitutional law experts, such as Harvard’s Laurence H. Tribe and Yale’s Jack Balkin have weighed in on the 14th Amendment and the budget crisis.

    In his column for The New York Times, Tribe writes:

    The Constitution grants only Congress — not the president — the power “to borrow money on the credit of the United States.” Nothing in the 14th Amendment or in any other constitutional provision suggests that the president may usurp legislative power to prevent a violation of the Constitution. Moreover, it is well established that the president’s power drops to what Justice Robert H. Jackson called its “lowest ebb” when exercised against the express will of Congress.

    But Rauch says the “dismissers” of the 14th Amendment option are acting, well, too dismissively.  

    “When push comes to shove, therefore, and August 2 or some other drop-dead date comes around, does the 14th Amendment trump the debt-limit statute? I would think so,” Rauch writes. “At a minimum, it gives President Obama a compelling case to keep servicing the debt. After all, in the current environment, even a temporary default could have severe economic consequences. Worse, it might be one of those moments in a country's history that frame a turning point in the narrative. "Deadbeat U.S.A.!" Reversing the damage to the country's psyche and image might take years, or forever. Lemme tell you, China isn't about to default.”