Is The Debt Limit Unconstitutional Under 14th Amendment, Section 4?

The headline in the New York Times is pure Larry Tribe, very important Harvard con law prof emeritus (as opposed to Dersh, who taught crim law).

Why I Changed My Mind on the Debt Limit

Of the myriad things that could possibly matter, why Tribe changed his mind does not make the list. But if he has an actually sound reason why the debt limit would be unconstitutional under Section 4 of the Fourteenth Amendment, that could actually be interesting. After all, much as he’s demonstrated his gymnastic willingness to bend and twist with the latest progressive fashion, he was still a prawf, even if at Harvard. So did he have anything worthwhile to offer this time in contrast to his genius last time?

Some have argued that this principle prohibits any government action that “jeopardizes” the validity of the public debt. By increasing the risk of default, they contend, any debt ceiling automatically violates the public debt clause.

This argument goes too far. It would mean that any budget deficit, tax cut or spending increase could be attacked on constitutional grounds, because each of those actions slightly increases the probability of default. Moreover, the argument is self-defeating. If it were correct, the absence of a debt ceiling could likewise be attacked as unconstitutional — after all, the greater the nation’s debt, the greater the difficulty of repaying it, and the higher the probability of default.

To the extent Tribe made a cogent argument, it’s that an interpretation of Section 4 is overbroad, such that a broad array of congressional actions would prove unconstitutional based on the potential of increasing the probability of default. Section 4 states:

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.

His real problem, however, was that it would allow the president to authorize the borrowing of money to pay the debt without Congress approving the act, thus giving the president too much, and unconstitutional, power.

The Constitution grants only Congress — not the president — the power “to borrow money on the credit of the United States.” Nothing in the 14th Amendment or in any other constitutional provision suggests that the president may usurp legislative power to prevent a violation of the Constitution.

This is the context in which Tribe provides his new effort at constitutional sophistry.

The president should remind Congress and the nation, “I’m bound by my oath to preserve and protect the Constitution to prevent the country from defaulting on its debts for the first time in our entire history.” Above all, the president should say with clarity, “My duty faithfully to execute the laws extends to all the spending laws Congress has enacted, laws that bind whoever sits in this office — laws that Congress enacted without worrying about the statute capping the amount we can borrow.”

Tribe’s epiphany of that Congress, by definition, has already approve the spending giving rise to the debt that is about to come due. You would think he was smart enough to have realized that before, but you would be wrong. One the front end, Congress has approved the spending. Congress acted and it’s the president’s constitutional duty to “take care” to faithfully enforce the law. So if Congress spent it, who is the president not to pay for it?

The president should remind Congress and the nation, “I’m bound by my oath to preserve and protect the Constitution to prevent the country from defaulting on its debts for the first time in our entire history.”

After all, doesn’t Section 4 say that the public debt shall not be questioned? But what of the 1917 law also enacted by Congress establishing a debt ceiling that can only be raise by Congress? If the president is to honor Congress’ authority to spend money, must he not also honor Congress’ authority to establish a debt ceiling above which the president cannot pay? Tribe has an answer.

For a president to pick the lesser of two evils when no other option exists is the essence of constitutional leadership, not the action of a tyrant. And there is no doubt that ignoring the debt ceiling until Congress either raises or abolishes it is a lesser evil than leaving those with lawful claims against the Treasury out in the cold.

Tribe’s contention is that the president, confronted with two conflicting options of ignoring the debt ceiling or defaulting on the payment of our national debt, is justified in picking the lesser of two evils. Tribe glosses over which option is the worst by saying “there is no doubt” which option the president should choose.

Is there no other option?  Gerard Magliocca offers a few alternatives that would temper the conflict, which would then save the president from having to choose between the lesser of two evils. Whether his options work is another story. After all, minting trillion dollar coins all day doesn’t really solve anything, but the physical act of doing so is certainly within the ability of guy stamping out coins.

But what of handing the president too much power to override Congress’ singular authority to incur debt? Could it be in a post-Trump nation, where the House of Representatives is held captive by a small group of MAGA nihilists, handing President Biden the keys to the safe suddenly looks less imperial? Or is this a bargaining chip to compel Speaker McCarthy’s handlers to bend to avoid the worst economic catastrophe the nation, perhaps the world, will ever endure?