The “14th Amendment Option” And The Imperial Presidency
Michael McConnell, a former Federal Appeals Court Judge who now teaches at Stanford University Law School, takes on the argument that Section Four of the 14th Amendment gives the President the authority to ignore the debt ceiling:
Section Four of the Fourteenth Amendment does not create a back-door method for the Administration to borrow more money without congressional authorization. For Congress to limit the amount of the debt does not “question” the “validity” of the debt that has been “authorized by law.” At most, it means that paying the public debts and pension obligations of the United States, as they become due, has priority over all other spending. Each month, the Treasury takes in about $175 billion in new revenues. These are more than sufficient to pay principal and interest when due, as well as pension obligations. (Social Security, by the way, is not a “pension” obligation within the meaning of this provision. The Supreme Court held in Fleming v. Nestor that Social Security claims are nothing more than promises to pay, not legal obligations to pay.)
If we reach the debt limit, the Treasury will be compelled to reduce spending (other than payments on the public debt and pensions) to bring current expenditures in line with current receipts, just as a family has to do when it has maxed out on its credit cards. Presumably, the executive branch will have to make the tough decisions about priorities. No law exists to guide the process. In theory, essential services and payments will keep flowing, and less essential services and payments will be postponed. In practice, if history is any guide, politicians in the executive branch will find it more in their interest to shutter the most conspicuous and painful services first – this is called “closing the Washington Monument” – to maximize public pressure to increase the limit. It would be a crying shame if the executive stopped funding truly inessential services and programs, and no one (other than the immediate beneficiaries) noticed.
Thus, the real effect of Section Four of the Fourteenth Amendment is almost the opposite of what hopeful voices in Washington are saying. Section Four puts the onus on the President to reduce spending in order to avoid default on the debt. It does not permit him to borrow more.
Jonathan Adler adds this point:
Another point of McConnell’s worth highlighting is that “legislative control over incurring new debt is a fundamental aspect of separation of powers.” Article I, Section 8 expressly grants Congress the power “to borrow money on the credit of the United States.” Despite this provision, some believe that Section 4 of the 14th Amendment authorizes the President to assume for himself a power expressly enumerated to a coordinate branch before taking more modest steps, such as privileging debt payment over other spending. [Note that the executive branch actually does this sort of thing all the time, as when agencies are given statutory obligations that outstrip their appropriations.] Pause for a moment, then, and think about the implications for executive power of the Section 4 argument: That despite the legislature’s refusal (thus far) to authorize additional debt, the President can unilaterally issue additional debt himself before taking other, less extreme measures. Why, this argument is positively Trumanesque.
Adler links to Youngstown Sheet & Tube Co v. Sawyer, a 1952 case in which the Supreme Court struck down President Truman’s efforts to unilaterally nationalize the steel industry in the wake of a nationwide strike, which he contended threatened the American war effort in Korea as wel as our defenses against the USSR. While the Court’s majority opinion, written by Justice Hugo Black, was qualified to some extent by the five concurring opinions issued in the case, Black’s warnings about the abuse of Executive Branch authority are well taken:
The President’s order does not direct that a congressional policy be executed in a manner prescribed by Congress — it directs that a presidential policy be executed in a manner prescribed by the President. The preamble of the order itself, like that of many statutes, sets out reasons why the President believes certain policies should be adopted, proclaims these policies as rules of conduct to be followed, and again, like a statute, authorizes a government official to promulgate additional rules and regulations consistent with the policy proclaimed and needed to carry that policy into execution. The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can make laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. The Constitution does not subject this lawmaking power of Congress to presidential or military supervision or control.
It is said that other Presidents, without congressional authority, have taken possession of private business enterprises in order to settle labor disputes. But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution “in the Government of the United States, or any Department or Officer thereof.”
The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power, and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand.
Adler’s point, and I agree, is that an assertion by the President that he has the authority to ignore the law, and ignore the fact that the Constitution gives Congress the sole authority on this issue, and issue new debt in the name of the United States would be the biggest executive power grab since Harry Truman tried to nationalize the steel industry, and it would just as unconstitutional. Those on the left, such as Katrina vanden Heuvel in today’s Washington Post, calling on the President to exercise this supposed authority, or at least threatening today, are essentially endorsing a lawless, arbitrary act by the President. If the President were a Republican, they’d be rightly screaming about how improper this is. Instead, they seem to be happily following him down a road that only ends in one place.