Calls are growing from President Obama simply to tell Congress to stuff it when it comes to the debt ceiling. Section 4 of the 14th Amendment says quite clearly that the “Public debt of the United States, authorized by law . . . shall not be questioned.” At the very least that would mean that the Treasury must pay off holders of Treasury bills whose notes are coming due.
And that has the right wing scared. Their strategy of holding the American economy hostage never took the Constitution into account. So now they are frantically trying to figure out why the Constitution doesn’t mean what it says.
Consider Andrew Grossman of Heritage, who argues that
unilateral action by the President to borrow money would be an unconstitutional usurpation of the legislative power. The Constitution vests the power to “to pay the debts and provide for the common defense and general welfare of the United States” and the power “to borrow money on the credit of the United States” in the Congress, not the President. The President lacks the authority to, on his own accord, make expenditures which have not been authorized by Congress (because Congress has imposed a debt ceiling that supersedes any such authorizations) or to undertake borrowing that has not been authorized by Congress.
That’s a nice try, but it doesn’t work. Grossman can only reach his conclusion by essentially ignoring the relevant passage, namely, the 14th Amendment, which yet again says that “the public debt authorized by law….shall not be questioned.” That provision changes, among other things, the provision that Grossman cites. Merely because Congress has the power to borrow money on the credit of the United States hardly implies that the President doesn’t when failing to do so would result in an unconstitutional default. The President has the constitutional obligation to “take care that the laws are faithfully executed.” He can’t avoid this obligation simply because the
Republican Tea Party has decided that it doesn’t want to pay the bills.
Grossman says that his answer must be right; otherwise, the President could impose taxes in order to avoid a default. Well, yes — what of it? The Constitution says that the United States cannot default. Exactly how far the President’s power would go when facing a default is not clear — as is the case with virtually all Presidential power. Only Congress can declare war — which is why President Obama’s actions regarding the Libyan war are unconscionable. But Congress’ power in this regard hardly means that the President cannot respond to military emergencies. The best way to handle this would be to say that the President must use the narrowest reasonable means for forestalling default, which in this case means borrowing. Of course, that ruling will never come, because as I have argued (and even intellectually honest voices on the right agree), no one would have standing to sue, but it still is the best rule.
In any event, if this is the best that the right wing can do, it’s in trouble. Grossman’s argument isn’t crazy, but it is wrong. The question now is whether President Obama will let the Republicans out of their dilemma.