Wednesday, June 29, 2011

Democrats may declare debt ceiling unconstitutional

Reports out of Washington suggest that Democrats are becoming so  frustrated with Republicans refusal to negotiate in good faith on the debt ceiling issue that some are beginning to embrace the 14th Amendment, nuclear option I discussed in a previous post and essential ignore the debt ceiling law completely.  Some Democratic Senators may hold a news conference on this as early as tomorrow.

As I noted, Section 4 of the 14th Amendment says that the U.S. must pay its bills.  It reads:

Section 4. The validity of the public debt of the United States, authorized by law… shall not be questioned.

Some legal scholars and journalists have argued that Section 4 makes the whole idea of a debt ceiling unconstitutional.  Additionally, some have argued that Congress Implicitly Extended the Debt Ceiling by Approving the Budget.  Their argument goes like this:

There are two powers that the Constitution gives to Congress that are applicable here - the power to "borrow money on the credit of the United States" (Article I, Section 8, Clause 2) and the implicit power to appropriate money suggested both by Article I, Section 8, Clause 1 ("The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States") and Article I, Section 9, Clause 7 ("No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law")

The question here is this: would Congress appropriating more money to be spent than is brought in via revenue be an implicit approval that the Treasury should be able to borrow at least that much money?

In other words: wouldn't the very act of appropriating money in a way that would increase the national debt constitute an implicit approval to raise the debt ceiling on the part of Congress?

Given the wording in the 14th amendment, not to mention the possible implicit approval by Congress, some now argue that Obama could just ignore the debt limit and pay the bills, regardless of what Congress says.  

True, Republicans would scream and very likely launch impeachment proceedings.  It is unlikely they could get the Senate to remove Obama from office.  Groups or individuals might attempt to take the issue to the courts but there is some question concerning how they would establish standing to sue since it would be hard for anyone to show that they were harmed by the government PAYING its bills.  Anyway, a court challenge would probably take months or years and the whole issue would probably be resolved by then.

See my previous post "Is there a Constitutional alternative to default?" for more.

Also, read more here:

No comments: