A true constitutional crisis
The 14th Amendment does not give the president unlimited power to borrow
As we all know, a deal has been made that allows the country to avoid a government shutdown. But that near miss regarding a budgetary and political crisis is not all that should concern citizens about this episode. An even greater crisis would come if the president had moved to act based on a radical reinterpretation of the 14th Amendment that, if implemented, would constitute one of the largest power grabs for the executive branch in the history of our republic.
This seizure of power would strip Congress of its Article 1 authority over debt issuance and payment and give the president—any president—unlimited borrowing power. It would give him powers hitherto unknown and would obligate not only current citizens but future generations as well. It would also create the problem that it purports to solve, in that it would call into question all new borrowing as extralegal and therefore suspect.
Let’s look at what the constitutional text actually says. Amendment 14, section 4 holds that “The validity of the public debt of the United States, authorized by law … shall not be questioned.” This is one of the three “Reconstruction Amendments” intended to restore the country after the Civil War. The connection with Reconstruction is that the debts mentioned are “debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion.” In other words, the amendment disallowed the formerly Confederate states to rejoin the Union and then advocate for default on the debt that was incurred in putting down their insurrection.
History is replete with acts of debt repudiation. In the case of a reunited nation, the forces of repudiation would be strengthened by the inclusion of states that think of that debt as particularly odious because in essence, by participating in its repayment, the states of the defeated Confederacy would be paying the bills for its own defeat.
Nothing in the deliberations about this change to the U.S. Constitution gave the slightest hint that it was intended to reengineer the text in such a way as to transfer borrowing authority from the legislative to the executive branch. No Congress would willingly give up one of its core powers. The Constitution is clear: “The Congress shall have Power To … pay the Debts … To borrow Money on the credit of the United States. …” Decisions about debt, incurring it and repaying it are classic Article 1 (that is legislative) powers. To transfer that power to the presidency would be to fundamentally violate a core principle of the American founding, that the branch closest to the people is in charge of the purse strings.
This principle has deep roots that extend downward in time before 1776 and across the Atlantic to the battles over the authority of the monarchy going back to the Magna Carta. Noblemen, and then later the British Parliament, restrained the power of kings by making them come crown-in-hand to the people to finance their wars.
However, from time to time, ideologues and operatives within the liberal coalition have floated the idea that somehow the amendment gave the president the authority to ignore congressional debt limits and engage in new borrowing in order to avoid defaulting on old borrowing. That idea was floated during the debt ceiling debates between President Obama and Congress in 2010. It’s worth noting that even Mr. Obama never claimed that power.
But Mr. Biden has, caving to pressure from the left flank of his party, including senators Bernie Sanders, John Fetterman, and Elizabeth Warren, and others of that wing, who have asserted that the president could use the amendment to undo the debt ceiling. But of course, it is immoral to threaten to do something that it is immoral to do. President Biden, putting himself to the left of Obama on the matter, claimed that he does indeed have that power. His only hesitation in using it is that it might not be useful in the short-term tactically.
It looks like we dodged that bullet this time. But be warned, this doctrine is now a consensus matter for the Democrats. The head of the party has endorsed it. It’s only a matter of time before they deem it both constitutional and tactically wise—and try to use it.
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