The Volokh Conspiracy
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Neither the Constitution Nor Common Sense Supports the Argument the Debt Ceiling Is Unconstitutional
Professor Prakash dispatches the arguments for unilateral Presidential authority to disregard the debt ceiling.
As negotiations between Congress and the White House over the debt ceiling proceed, some continue to argue that the President should invoke the 14th Amendment as authority to circumvent the debt ceiling. As I noted before, this is not a new debate, but the claims continue.
In Thursday's WSJ, University of Virginia law professor Saikrishna Prakash explains why "neither the Constitution nor the law nor common sense" supports the argument that the debt ceiling can be disregarded. Professor Prakash starts with the text:
The 14th Amendment is often cited but rarely quoted. Section 4 both repudiates Confederate debt and promises to honor U.S. debt. The provision at issue provides that the "validity of the public debt of the United States, authorized by law . . . shall not be questioned." Section 4 doesn't address default or other failures to honor terms of a debt contract. It bars repudiation. A debtor who is late on a payment isn't questioning the debt's validity; he is merely tardy. To my knowledge, no one on either side of the debate is suggesting that the U.S. repudiate its debt.
Further, even if one assumes the 14th Amendment bars debt defaults, it nowhere authorizes the president to take whatever measures he deems necessary to prevent default. It no more empowers him to take such measures than it does you or me. As per the Constitution, Congress, not the president, has the power to "borrow money on the credit of the United States." If the Constitution bars default and more money is needed to prevent default, Congress must act. The president can't issue debt on his own say-so.
Prakash further notes that insofar as the 14th Amendment obligates the President to act to ensure that debts are paid, this would require the President to prioritize paying such obligations over making other appropriations.
If Congress fails to raise the debt ceiling, the only reason there would be a default is if the executive fails to pay the interest on the debt as it comes due. But if the executive branch believes there is a constitutional requirement to pay the interest, why would it even consider refusing to do so? To my knowledge there is no law that prevents the executive from prioritizing interest payments above all other spending.
In fact, there is an argument that having by statute pledged the "faith of the United States Government," Congress implicitly prioritized the payment of the interest and principal. If the debt ceiling isn't raised, the Treasury should pay the interest as it is due and spend less than Congress appropriated. That would be the best solution in the wake of a mismatch between total inflows (taxes plus new borrowing) and Congress's desired spending.
Not only does the President lack the authority to disregard the debt ceiling, he also lacks the constitutional authority to borrow funds without congressional authorization.