Though I missed President Obama’s Twitter Towne Hall, I gather that he was asked about his position on a fanciful new theory regarding the 14th Amendment and the debt ceiling, and that he avoided giving an answer. Given the frenzy for this fad among pro-debt intellectuals and their dupes, the president’s coyness is shameful.
Garrett Epps’ 14th Amendment theory is a transparent fraud. Epps posits that Amendment XIV, Section 4 of the U.S. Constitution gives the president the unilateral authority to borrow more money on top of the federal government’s existing $14.3 trillion debt. He quotes the opening clauses of Section 4, which read in part: “The validity of the public debt of the United States, authorized by law...shall not be questioned.”
In Epps’ telling, Section 4 is a “fire ax,” though he declines to mention what it’s supposed to break through. He also declines to give the full text of Section 4, which would force him to contend with the glaring truth that Section 4’s “validity” language is not there to overturn the clear language of Article I, Section 9, Clause 7 (“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by law…”). In fact, it’s not there to make any change at all to the management of U.S. debt service, revenue collection or public spending. It’s there to draw the distinction between valid U.S. debt (which was viewed, before 1866 and after, as obligatory) and debts incurred by the Confederacy (which the U.S. government in 1866 obviously wanted to refuse). Read it yourself:
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
This is not an original-meaning quibble. Epps is pretending Section 4 revisits the Constitution’s unambiguous assignment of budgeting power to Congress. It does not do so, either in its plain language or in any intent that could plausibly be assumed from language or history. Even in the bowdlerized version of Section 4 Epps and his followers quote, the “authorized by law” clause makes this clear.
The nature of that legal authorization is also clear. Article I, Section 7, Clause 1 authorizes Congress to originate all bills for raising revenue. Article I, Section 8, Clause 2 authorizes Congress to borrow money. Article I, Section 9, Clause 7, referred to above, specifically prohibits borrowing any additional money outside of that framework. And nothing in the 14th Amendment comes close to revisiting that framework.
It’s also not possible that Section 4 of the 14th Amendment revisits that framework silently. When an amendment overrides the plain language of the Constitution, it does so specifically, as the 16th Amendment does by using the exact language about census and enumeration that was originally found in Article I, Section 9, Clause 4; as the 12th Amendment does by using the language “Electors shall meet…” originally found in Article II, Section 1, Clause 3; and as the 21st Amendment does in saying, "The eighteenth article of amendment to the Constitution is hereby repealed."
Ryan J. Reilly and Brian Beutler of TPM talk to a former head of the Justice Department's Office of Legal Counsel, who notes some of the above, and gives a thumb down to Epps’ hare-brained scheme:
I don't believe that the Executive Branch would be empowered by this provision in the Fourteenth Amendment to issue new debt in order to meet current interest payment obligations on previously issued debt, where the issuance of the new debt would cause the United States to exceed a statutory debt ceiling set by Congress.
I don’t know whether Epps is a fool or a knave in making this embarrassingly thin case. But Obama’s dodging such a straightforward question is pathetic. I’ve never known any president to acknowledge that there are any limits on his power – even when that limit is clear to any Schoolhouse Rock watcher – but this one is just insulting.
And slightly creepy. If pro-debt scholars were making a serious argument here, they would go directly to U.S. Constitution I.9.7, and find some evidence that it doesn’t mean what it says it means. Maybe money borrowed from a central bank is not money drawn from the Treasury? Or maybe limitations not written in Article II do not apply to the president? But disturbingly, nobody needs to address a constitutional question at all, because the most eloquent argument will always be: JOBBZZZ!