In Defense of the Debt Limit’s Constitutionality

The Honorable Michael McConnell responds to claims that the debt ceiling is unconstitutional and that Section 4 of the 14th Amendment authorizes the President to issue additional debt if necessary to meet existing debt obligations.  Here’s a taste:

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. . . .

. . . 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.

UPDATE: 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.

SECOND UPDATE: Jack Balkin has convinced me that the purpose of Section 4 was “to remove threats of default on federal debts from partisan struggle.” Therefore, the President is precluded from taking any action that would call into question the validity of the public debt and so long as federal receipts are greater than debt service payments, the executive branch is required to prioritize payment of debt and pension obligations above all other spending.