Treasury Secretary Tim Geithner has picked up on suggestions that the debt limit violates Section 4 of the Fourteenth Amendment, though stopped short of saying the Administration would refuse to abide by the ceiling to avoid default. Meanwhile, much bandwidth is being spilled over the various constitutional arguments.
Jack Balkin points to the drafting history of Section 4 that could support the argument against the debt ceiling. In particular, he notes that this portion of the 14th Amendment was intended to prevent subsequent repudiation of Civil War debts. Michael Stern responds noting, among other things, that repudiation and default are not one and the same (a point I also made to Balkin in an e-mail on Thursday). Repudiation cancels a debt, whereas default is a failure to pay a valid debt. In other words, default presumes that the debt is still valid, and does not call into question the validity of the obligation. Further, even if Section 4 precludes repudiation of valid debts, this does not mean default is equally unconstitutional, or that the President is authorized to issue new debt obligations to cover the old without Congressional approval. Balkin responds here, but I am still not convinced. His argument boils down to a claim that since debt repudiation is off the table, so is all political gamesmanship over how and when debts get paid.
Gerard Magliocca adds an interesting wrinkle, noting the Public Debts Clause could be read to preclude Congressional default as well, though Calvin Massey does not believe the clause grants the President unlimited authority to borrow money. Michael Abramowicz — one of the few scholars to have focused on these questions — also notes that broad readings of Section 4 and the Public Debts Clause have implications for other laws and would, among other things, cast a constitutional pall over Medicare. On this basis, he urges a more “modest” approach — an approach Michael Stern does not find so modest. Meanwhile, Mark Tushnet finds the mere suggestion the President has constitutional authority to violate the debt ceiling “off-the-wall” (which is not the same thing as saying it is wrong). Brad DeLong responds to Tushnet here.
Whatever the correct constitutional interpretation of Section 4, there is another question: Whether this question could ever come before the Courts. I don’t think so. (Nor does Jonathan Zasloff, who addressed the question a while back.) First, it would be difficult to find someone who would have Article III standing. Second, even if standing could be established, courts would likely avoid the issue on political question or other grounds. Brad DeLong is not convinced. Michael Stern has thoughts on this question too.
UPDATE: Michael Stern responds to Balkin here. As Stern observes, the force of Balkin’s rejoinder “lies more in the cleverness of its author than the merits of its argument.”