The Worst Argument Against Using the 14th Amendment

One can argue, of course, that the President does not have the power under the 14th Amendment to unilaterally lift the debt ceiling.  But recently I’ve been seeing an argument to this effect that really makes no sense.

Section 5 of the 14th Amendment says that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”  Some right-wingers have jumped on this provision, arguing that only Congress can use the 14th Amendment.

Just take a deep breath on this one, guys.  There’s a case called Brown v. Board of Education that you might recall.  It was an Equal Protection case.  And where does the Equal Protection Clause arise in the Constitution?  The 14th Amendment.  Somehow, the Supreme Court there was able to enforce the 14th Amendment without the assistance of Congress.  All Equal Protection cases, not to mention Due Process cases, derive from the 14th Amendment, and they don’t require Congressional action.  Indeed, that’s part of the whole point: the Constitution is the law regardless of what Congress says.

I think that the argument for Presidential authority to lift the debt ceiling here is a good one.  There are good arguments on the other side.  Exclusive Congressional authority is not one of them.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

17 thoughts on “The Worst Argument Against Using the 14th Amendment”

  1. Your argument by analogy is quite faulty. The US Constitution explicitly give courts the authority to apply the law in specific cases. Brown v. Board of Education was such a case. The Constitution does not grant to the Executive the authority to apply the law in specific cases. Then, your analogy fails.

    Further, the powers granted in the Constitution are limited. This is the meaning of the 10th Amendment. Unless a power is specifically granted to the government, it does not have it. If a power is not specifically granted to a Branch of government, it does not have that power.

    Even further, the Constitution in Article 1 grants the budgetary authority to Congress alone. The 14th Amendment merely extends this budgetary power to maintenance of public debt.

    There is no good argument for Executive fiat in maintenance of the public debt.

  2. @Jeff — read your Constitution. The Executive shall “take care to see that the laws are faithfully executed.” Conversely, nothing in the Constitution says anything about judicial review; it only refers to the “judicial power.” In any event, the argument about the 14th Amendment is just that: those arguing that the President cannot do anything with it claim that because the Amendment says that Congress may enforce, that makes Congressional power exclusive. If that is the case, then Brown was incorrectly decided because the Supreme Court had no power to enforce the 14th Amendment. But thanks for playing.

  3. So by your analysis, Section 5 is redundant since Congress always has the power to enforce the Constitution by legislation? It seems like this was a fashionable clause to include in a number of amendments for a while. I wonder if it was to preempt any “states rights” arguments.

  4. Well, the Supreme Court was empowered to declare states laws unconstitutional in Brown v. Board of Education because of its (implied) power of judicial review.

    You seem to be arguing that the Take Care clause empowers the president to also test the constitutionality of statues in a similar manner and ignore them if he finds them unconstitutional. Right or wrong, this would raise serious division-of-power concerns. Even if it were a pragmatic solution for the current debt limit dilemma, it could cause considerable harm in other situations, and a cure that’s worse than the disease.

    Correct me if I’m wrong — I may be misunderstanding you here.

  5. I don’t understand why one would think Obama should force the issue using the 14th Amendment option, when it’s at best possibly legal/constitutional, when the platinum coin option is (AFAIK) entirely legal and constitutional. And it has the additional attractive feature of being somewhat farcical, which fits the situation well.

  6. I just Googled the platinum coin option, which I hadn’t seen before, and it actually seems, at first glance, quite plausible — I agree, far better than this Fourteenth Amendment nonsense. I don’t know why it would seem farcical. Anyone who has read the paper money cases should be attuned to the plausibility of the distinction here.


  7. @Tim — Section 5 is, as you suggest, a provision to protect against the argument that legislation to enforce the 14th Amendment would be beyond the scope of Congressional power under Article I Section 8. If Congress passed a law to implement to 14th Amendment (say, something like the Voting Rights Act), opponents might have argued that Congress has no power to do it. Thus, Section 5. Congress can’t merely legislate on an issue and CLAIM that it is doing so under Section 5: that’s what Boerne v. Flores (federal RFRA not allowed under Section 5) and US v. Williams (VAWA provisions exceed Congressional power under Section 5) were about.

    @Katja — No, that’s not what I’m arguing at all! (Thanks for asking). I was merely trying to address the argument that Brown v. Board of Education was okay because judges can always enforce things, but that the executive has no power to enforce constitutional provisions. If anything, I was arguing, constitutional text gives MORE enforcement power to the executive than to the judiciary. Perhaps, by addressing an incoherent argument, I made it more coherent than it otherwise would have been. That said — the executive can at times refuse to enforce a law because he thinks it’s unconstitutional. Or at other times, he can refuse to enforce because it is unconstitutional AS APPLIED in a particular case. That appears to have been Obama’s position on the War Powers Act, and I agree with you that that is dangerous. But the executive can say that he won’t enforce something because it’s unconstitutional. Normally, you’d expect the Supremes to step in and settle the issue. With the debt ceiling, it’s harder because no one would have standing to sue. But executive arguments of this nature happen all the time. Bush, of course, abused his authority to do it: he would sign a bill, grab the power he wanted, and then write a signing statement telling the executive branch to ignore the provisions he didn’t like because they were unconstitutional. In that situation, he should have just vetoed the bill.

  8. The executive has the power to execute the constitution.
    The 14th explicitly states that the debt shall not be questioned.
    The debt limit bill is (as with all laws) trumped by the constitution.

    So what am I missing here?

  9. That the Constitution also reserves the borrowing power for Congress?

    Look, discussions of this often give the impression that, if there simply weren’t any debt ceiling legislation at all, the President could borrow whatever he needed. Bzzzt! Borrowing has always been constitutionally reserved for Congress. It used to be that, whenever the President needed to borrow money, he’d go to Congress, and Congress would pass a law authorizing that specific instance of spending. That went on for like 140 years.

    Then along comes the great depression, with a lot of borrowing, and Congress decided authorizing each particular instance was too much like work. So they started passing bills pre-authorizing huge chunks of borrowing, up to some ceiling, with the Executive allowed to work out the details. So that the President wouldn’t be pestering them for borrowing authority quite so often.

    If we were to simply abolish the debt ceiling, it wouldn’t give the President authority to borrow one cent. It would simply mean a return to the old days where the President needed a law passed every specific time he wanted to borrow. It would be much MORE restrictive than the present setup, we’d be having these confrontations on a monthly basis.

    Now, why can’t the President borrow anyway, in an emergency? I think Tribe covers this quite well.

    The bottom line is, when the money runs out, not spending money we don’t have only violates a statute, while usurping Congress’ power to borrow violates the Constitution.

    As for the coin, the law says they can mint bullion coins. That’s a term which actually has a meaning, even if, as Mark elsewhere comments, it’s not defined in that specific law. And that meaning isn’t “Fiat currency that happens to be printed on gold or silver.”. Bullion coins are denominated in weight, as in the weight of the precious metal to be found in them.

    So, yeah, the President can have bullion coins stamped out, and sell ’em. It’s just a fancy way of selling off the nation’s precious metal reserves, and it won’t last long, because we’re borrowing at a fantastic rate compared to the size of those reserves, but he can do it.

    It’s just can’t legally be used as a way of printing money. Because you can’t stamp “$1,000,000” on a half ounce coin, and demand that people accept it as a million dollars. Bullion coins don’t fall under the “legal tender” laws, that’s what makes them bullion coins, rather than regular ones.

    And if the President decides he’s going to violate a law, he’s not going to pick one that makes him an object of ridicule, which having the mint strike a billion dollar platinum coin would do.

  10. Brett: “Look, discussions of this often give the impression that, if there simply weren’t any debt ceiling legislation at all, the President could borrow whatever he needed. ”

    Wrong again, as usual. The discussions have pointed out that the President will soon be facing a case of contradictory laws, where he can not obey all of them. In which case presumably (a) the last law passed is considered binding and (b) the Constitution is considered binding.

  11. I don’t mean to stake a claim on any of the related issues, but I think the basic premise of your analogy is mistaken. Brown wasn’t decided in the absence of any statutory authority like some kind of proto-Bivens action. Three of the four consolidated cases in Brown came to the Court from three-judge panels constituted pursuant to (then-)28 U. S. C. §§ 2281 and 2284; the fourth was a cert. grant to the Supreme Court of Delaware. 347 U.S. 483, 486 n.1. Whether or not the Supreme Court can enforce the Fourteenth Amendment in the absence of congressional authorization (which I think is an interesting question), it didn’t actually do so in Brown.

    You may well be right that the executive has certain inherent enforcement powers flowing from the Fourteenth Amendment; I don’t know. But I’m not sure Brown tells us anything about that question.

  12. Brett,
    You are right: bullion coins are denominated in weight. But you are incomplete. These coins are doubly denominated: value as well as weight. These coins say both: “$50” and “one ounce gold/platinum/plutonium/whatever”. If Uncle can inscribe “$50”, Uncle can just as easily inscribe “$1 trillion”.

  13. Brett Bellmore wrote, “As for the coin, the law says they can mint bullion coins. That’s a term which actually has a meaning…”

    First, the law in question mentions proof coins, not just bullion coins. Second, if you think these coins cannot be used as legal tender for their nominal face value, please provide a cite.

  14. @RJM — Thta’s an extremely interesting point. I’m not sure that one can equate the granting of jurisdiction with the delegation of enforcement authority. For example, Congress has the authority to enforce the republican-form-of-government clause, and it could grant jurisiction to federal courts to here those case, but every one of those cases would come back with the decision that that clause is judicially unenforceable, no matter what Congress says. Now you’ve got me going on it! But in any event, unless one takes the position that Congress could remove all of the Supreme Court appellate jurisdiction, then the point still holds. And as you say, there is Bivens, so the point also still holds. But your argument may have some purchase regarding Brown itself. Thanks.

  15. Jonathan:

    I just heard you on NPR, where you discussed the idea that the President would have to choose between two legally problematic courses of action: picking and choosing which debts to have the Treasury honor, or raising the debt ceiling unilaterally in order to honor all of those debts. He lacks the authority to pick and choose, which, if done, would give the unpaid parties standing to sue him. If he raises the debt limit on his own authority to ensure that the validity of the public debt not be questioned, then all creditors would be paid and no party would have standing to sue. Is this what you intended to say?

    I am assuming here that Pres. Obama will not attempt to pay any claims for the emancipation of any slave; this would violate the 14th Amendment. Other than that, his authority to pay the debts could be very broad, yes?

  16. “The executive has the power to execute the constitution.
    The 14th explicitly states that the debt shall not be questioned.
    The debt limit bill is (as with all laws) trumped by the constitution.”

    “So what am I missing here?”

    Is this a farking joke? The “executive has the power to execute the constitution”?!!?? This means that the executive can declare war, right? And this means that the executive can reverse Supreme Court decisions too, right? And this means that the executive can admit new States into the Union, right?
    Good grief are liberals they really that ignorant? Oh, and section 5 means exactly what it says. It is for the Congress, not the executive, to ensure that the debt is not questioned.

  17. The executive branch only enforces existing law that is created by congress. The constitution is a law but the executive has no power to enforce that particular body of the constitution which is why congress has to first create a law that enforces the constitution before the president can go out their and enforce it.

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