Is the Debt Ceiling Constitutional?

Reporting on Politics and Policy.
June 29 2011 12:16 PM

Is the Debt Ceiling Constitutional?

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Back in April, Garrett Epps wrote a thoughtful, popular essay based on a gimmick: What if Barack Obama simply said that the debt limit was unconstitutional? What if the deadline passed and he said it didn't matter?

David Weigel David Weigel

David Weigel is a Slate political reporter. 

I have ordered that Secretary of the Treasury Timothy Geithner immediately begin issuing binding debt instruments on the world market sufficient to cover all the current obligations of the United States government, even in default of Congressional action to meet those obligations.
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I take this action to fulfill the oath I took as president of the United States. The Constitution explicitly requires me, under my duty to "take care that the laws be faithfully executed," to meet and pay all debts of the United States.
This requirement is absolute. It is contained in Section Four of the Fourteenth Amendment, which directs, in no uncertain terms, that "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."

Again: Sort of a gimmick. Not an idea with political support at the time. But it is now. Ryan Grim reported last night that Democrats like Chris Coons (who's been very serious about the need to get to a balanced budget) are talking about the "validity of the public debt" clause of the 14th Amendment to ask whether, really, it's even constitutional to hand this leverage over to Congress.

Why haven't we heard this before? Because it's at least a little specious. Republicans explain that, in context, the authority for Congress to vote on the debt limit is clear. Look at Article I, Section 8, Clause 2, which authorizes congress "to borrow money on the credit of the United States." Congress controls purse strings; this is a purse.

Chuck Todd tossed a question about this to President Obama today, and I thought it was notable that he passed on a chance to endorse this. He dismissed the discussion of Libya, and the constitutionality of the intervention there, as "politics," and pressed again on the debt said "That's a good legal answer." This trial balloon might have fallen to earth already.

David Weigel is a Slate political reporter.