Sorry, the Debt Limit Looks Constitutional

With negotiations over the debt limit going down to the wire, the threat of a catastrophic default looms on the horizon. In order to prevent this disaster from happening, some analysts and experts think they have found a way to prevent the crisis: declare the debt limit itself to be unconstitutional. Economics columnist Bruce Bartlett, one of this view’s main supporters, cites section 4 of the 14th Amendment, which states that “the validity of the public debt … shall not be questioned.” However, this view is not universally accepted. Three legal scholars contacted by FrumForum invoked the powers granted to Congress under Article 1 to dispute the case against the debt ceiling and offered rival interpretations of the passages cited by Bartlett and others.

Michael McConnell, a former federal judge who now teaches at Stanford Law School, has recently written about the issue. He noted that “Article I, Section 8, Clause 2 gives Congress authority to borrow money on the credit of the United States, [so]  Congressional authorization is … constitutionally required for the Treasury to borrow.”

Theodore Seto, a law professor at  Loyola Marymount University who specializes in public finance, agreed and pointed out that standard interpretive practices gives the section from Article I precedence over the 14th Amendment. “You want to try to interpret constitutional provisions so that they’re consistent with one another,” he said. “If section 4 were meant to override the Congressional control over borrowing mentioned in Article I, you would expect that to be stated clearly.” Seto admitted that “politically, I’d love to defang the Republicans on this [by showing that the debt ceiling is unconstitutional], but I just don’t see the argument.”

Calvin Massey, a professor of constitutional law at the University of California at Hastings who has also written about the debt-ceiling debate recently, took a different view of the provision of the 14th Amendment that Bartlett cites. “I think that what the constitutional provision in the 14th Amendment means is that the government is directed constitutionally not to default on its debts,” he said. “That means that you take current revenue and devote it first of all to paying the existing debt, but that doesn’t give the Treasury Department carte blanche to borrow additional funds.”

Opponents of the debt ceiling also cite a constitutional provision known as the Take Care clause, which requires the President to "take care that the laws be faithfully executed." They argue that the prioritization of spending which Massey recommends would violate this requirement since it would involve disregarding laws which require spending money on other federal programs. However, the scholars FrumForum spoke to were skeptical of this argument as well.

“[The President has] a constitutional obligation that’s paramount to ordinary legislation to make sure that the public debt is paid,” Massey said. “Legislation is always subject to constitutional limitations, and … in [this] situation … that means paying the public debt first.” McConnell agreed, arguing that “among the laws he must faithfully execute is the constitutional prohibition on borrowing without authorization by Congress.” Both McConnell and Seto also noted that, if the Take Care clause allows the President to borrow without Congressional authorization, it would also allow him to levy new taxes without consulting Congress; they both saw this as a clear sign that the argument the debt ceiling was unconstitutional was mistaken.