J.J. Goldberg

Take Debt Limit to Court. It's Unconstitutional

By J.J. Goldberg

  • Print
  • Share Share
Getty Images
‘I do solemnly swear…’

Wait a minute: I still don’t understand why the idea of a debt ceiling is constitutional.

The last I heard, the Fourteenth Amendment was still part of the Constitution. Here’s Section 4:

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.

Call me crazy, but that seems pretty straightforward: One may not take steps to impede the United States’ payment of its debts. That should mean that any law permitting or enabling the prevention of America paying its debts is prima facie unconstitutional. The debt ceiling statute, by asking members of Congress to decide whether the government may continue to pay the money it owes, is by definition a violation of the Constitution. Its very language questions the public debt of the United States.

Pelosi, Geithner and others have raised this argument several times in the last few years, but Obama punted then and he did it again this time (surprise, surprise) to avoid confrontation with Congress and stick to his mythical middle ground. He’s afraid the House would impeach him and cause an even bigger crisis of confidence.

But it doesn’t have to be a confrontation between the branches. An outside goo-government group—or House Democrats—could and should go to the D.C. Circuit and challenge the constitutionality of the 1917 statute creating the debt ceiling. They should ask for a temporary injunction suspending enforcement of the law until the matter has been adjudicated.

A constitutional scholar might tell us that the public debt of the United States doesn’t refer to bills it has agreed to pay, but to repayment of bonds it floated—money it borrowed—to pay those bills. Even by that reading, any measure that raises questions about service of the debt—keeping up interest payments—should be unconstitutional. The fact that Republican caucus members suggest a way around it—paying the interest and stiffing everyone else—doesn’t negate the fact that the question has been raised, and that’s what’s unconstitutional.

Once you allow a vote on whether to continue paying the government’s bills, you are asking members of Congress to decide whether or not they want to honor the government’s debts. That actually puts the members in a bind. Every member, on entering office, did “solemnly swear” to “support and defend the Constitution” and to “bear true faith and allegiance” to it. Voting against an extension of the debt ceiling, thus preventing the government from paying its debts, amounts to violating the oath of office. One could argue that it would subject them to removal.

In any event, the Supreme Court ruled in 1935, in Perry v. United States, that the 14th Amendment’s language should be construed as referring to all U.S. “public obligations,” not just particular bonds up for payment. Here’s what Chief Justice Hughes wrote about Section 4 of the 14th:

We regard it as confirmatory of a fundamental principle which applies as well to the government bonds in question, and to others duly authorized by the Congress as to those issued before the amendment was adopted. Nor can we perceive any reason for not considering the expression ‘the validity of the public debt’ as embracing whatever concerns the integrity of the public obligations.

Then there’s the question of precedent: Administrations have deferred to the debt ceiling law since it was first passed in 1917, so that validates it. But the notion of a century of precedent hasn’t stopped this Supreme Court from doing what it wanted in the past, so it’s hard to see why it would now. A more serious problem is that this court doesn’t seem willing to break with Republican policy on much of anything. It’s hard to imagine Roberts & co. siding with the Constitution over the Tea Party on this either. Maybe Kennedy would be willing to go along with reason. And if he didn’t and the United States’ credit rating plunged as a result of the court disavowing our constitutional commitment to the debt, at least we’d know we deserved it.


Permalink | | Share | Email | Print | Filed under: U.S. Constitution, Timothy Geithner, Supreme Court, Perry v. United States, Nancy Pelosi, John Boehner, House Republicans, Fourteenth Amendment, Debt Limit, Chief Justice Roberts, Debt Ceiling, Chief Justice Hughes, 14th Amendment, Barack Obama

The Jewish Daily Forward welcomes reader comments in order to promote thoughtful discussion on issues of importance to the Jewish community. In the interest of maintaining a civil forum, The Jewish Daily Forwardrequires that all commenters be appropriately respectful toward our writers, other commenters and the subjects of the articles. Vigorous debate and reasoned critique are welcome; name-calling and personal invective are not. While we generally do not seek to edit or actively moderate comments, our spam filter prevents most links and certain key words from being posted and The Jewish Daily Forward reserves the right to remove comments for any reason.




Find us on Facebook!
  • Move over Dr. Ruth — there’s a (not-so) new sassy Jewish sex-therapist in town. Her name is Shirley Zussman — and just turned 100 years old.
  • From kosher wine to Ecstasy, presenting some of our best bootlegs:
  • Sara Kramer is not the first New Yorker to feel the alluring pull of the West Coast — but she might be the first heading there with Turkish Urfa pepper and za’atar in her suitcase.
  • About 1 in 40 American Jews will get pancreatic cancer (Ruth Bader Ginsberg is one of the few survivors).
  • At which grade level should classroom discussions include topics like the death of civilians kidnapping of young Israelis and sirens warning of incoming rockets?
  • Wanted: Met Council CEO.
  • “Look, on the one hand, I understand him,” says Rivka Ben-Pazi, a niece of Elchanan Hameiri, the boy that Henk Zanoli saved. “He had a family tragedy.” But on the other hand, she said, “I think he was wrong.” What do you think?
  • How about a side of Hitler with your spaghetti?
  • Why "Be fruitful and multiply" isn't as simple as it seems:
  • William Schabas may be the least of Israel's problems.
  • You've heard of the #IceBucketChallenge, but Forward publisher Sam Norich has something better: a #SoupBucketChallenge (complete with matzo balls!) Jon Stewart, Sarah Silverman & David Remnick, you have 24 hours!
  • Did Hamas just take credit for kidnapping the three Israeli teens?
  • "We know what it means to be in the headlines. We know what it feels like when the world sits idly by and watches the news from the luxury of their living room couches. We know the pain of silence. We know the agony of inaction."
  • When YA romance becomes "Hasidsploitation":
  • "I am wrapping up the summer with a beach vacation with my non-Jewish in-laws. They’re good people and real leftists who try to live the values they preach. This was a quality I admired, until the latest war in Gaza. Now they are adamant that American Jews need to take more responsibility for the deaths in Gaza. They are educated people who understand the political complexity, but I don’t think they get the emotional complexity of being an American Jew who is capable of criticizing Israel but still feels a deep connection to it. How can I get this across to them?"
  • from-cache

Would you like to receive updates about new stories?




















We will not share your e-mail address or other personal information.

Already subscribed? Manage your subscription.