While I would like to move on from the Public Debt Clause issue, I feel obliged to remark on Katrina vanden Heuvel’s column, entitled “Invoke the 14th — and end the debt standoff,” in the Washington Post today. She writes:
President Obama may find that there is only one course left to avoid a global economic calamity: Invoke Section 4 of the 14th Amendment, which says that “the validity of the public debt of the United States . . . shall not be questioned.” This constitutional option is one that the president alone may exercise.
If the Aug. 2 deadline arrives and no deal has been made, Obama could use a plain reading of that text to conclude—statutory debt ceiling or not—that he is constitutionally required to order the Treasury to continue paying America’s bills. In that sense, this is no just a constitutional option, it is a constitutional obligation, one that even the Tea Party will have trouble denying.
It is not entirely clear what vanden Heuvel means by the President ordering “the Treasury to continue paying America’s bills.” The debt limit does not prohibit the Treasury from paying creditors or anyone else: it simply bars it from borrowing more money. And, as we have exhaustively discussed, the “plain reading” of the Public Debt Clause in no way establishes that Congress is forbidden from putting a limit on the overall debt of the government.
Let’s put that aside, however, and assume that there is a plausible argument that the debt limit is in fact unconstitutional. Does that mean that the President can disregard it? Ms. vanden Heuvel says yes: “In Freytag v. Commissioner (1991), the Supreme Court held that the president has ‘the power to veto encroaching laws . . . or to disregard them when they are unconstitutional.’” Therefore, she claims, Obama would be on a “strong legal footing” if he were to invoke the Public Debt Clause to disregard the debt limit.
Well, let’s see. The quote from Freytag is from Justice Scalia’s concurrence, not the majority opinion. Even if it were in the majority opinion, it would be dicta, not a holding. And Justice Scalia is referring to laws that encroach on the constitutional powers of the executive (which no one claims that the debt limit does), not all laws. But, in her defense, vanden Heuvel did correctly cite the date of the case.
Giving the President the power to disregard all laws that he thinks are unconstitutional is a pretty big deal. Strangely enough, vanden Huevel does not always seem to have been such a big fan of executive power. In “The Madness of King George,” written a few years back, she expressed rather strong concern about a president’s claimed “right to ignore law.” She quoted approvingly from an ABA panel that wrote: “The President’s constitutional duty is to enforce laws he has signed into being unless and until they are held unconstitutional by the Supreme Court or a subordinate tribunal. The Constitution is not what the President says it is.”
Apparently it is now.
I fear that I am now just nagging, but if the 14th Amendment allows the president to ignore the debt ceiling, then, beyond the standing issue, it seems to boil down to whether “he shall take care that the laws be faithfully executed” allows the president to order additional borrowing to pay our bills. I am not very familiar with the case law, but my understanding is that the courts have allowed the powers of the executive branch to grow considerably. Perhaps this is where the Court will draw a line–and perhaps not.
Nothing worse than sloppy, inconsistent formulation from the rapidly shrinking remains of the left.
You, mstern, say that the “The debt limit does not prohibit the Treasury from paying creditors or anyone else: it simply bars it from borrowing more money.”
Isn’t the cause of this drama/hostage-taking the very fact that the Treasury has said that, as of Aug 2, 2011, it will not be able to pay anything without borrowing?
Now for the question that has been roundly ignored on several other sites: does the debt ceiling limit statute expressly reserve the power to determine the debt ceiling to congress? Or is this implied from Art 1, section 8 of the constitution, which gives congress the right to borrow money and repay debt?