Does The 14th Amendment Impact The Debt Debate?

While congressional leaders and the White House play chicken with spending, taxes and what to do about the national debt, some analysts are murmuring that a dusty constitutional remnant of the Civil War may provide the president an out. Melissa Block talks with Jeffrey Rosen of the George Washington University School of Law about the possibility of using the Fourteenth Amendment to back federal deficit spending.

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MELISSA BLOCK, host:

Forget the machinations in Congress. There's a constitutional argument brewing, which claims the president has sole authority over the nation's debt.

In a public interview with Politico's Mike Allen in May, Treasury Secretary Timothy Geithner reached into his jacket pocket and brandished a copy of the Constitution.

Secretary TIMOTHY GEITHNER (U.S. Department of Treasury): Can I read you the 14th Amendment?

Mr. MIKE ALLEN (Chief White House Correspondent, Politico): We'll stipulate to the 14th Amendment.

Sec. GEITHNER: No. I want to read this one thing.

Mr. ALLEN: It's paper-clipped and is...

Sec. GEITHNER: The validity of the public debt of the United States, authorized by law, including debts incurred for the payments of pensions and bounties for services in suppressing insurrection or rebellion - this is the important thing - shall not be questioned.

BLOCK: Some legal scholars have joined the fray, saying the 14th Amendment does indeed put the country's debt obligations beyond the reach of Congress. One Republican Senate leader called that crazy talk.

And today, at his Twitter town hall meeting, President Obama swatted down the idea.

President BARACK OBAMA: I don't think we should even get to the constitutional issue. Congress has a responsibility to make sure we pay our bills. We've always paid them in the past. The notion that the U.S. is going to default on its debt is just irresponsible.

BLOCK: We're going to entertain that constitutional issue now with Jeffrey Rosen, a professor of law at The George Washington University.

Jeffrey, thanks for coming in.

Professor JEFFREY ROSEN (The George Washington University Law School): Good to be here.

BLOCK: We're talking about Section Four of the 14th Amendment, the debt clause, adopted in 1868 - so the Reconstruction period after the Civil War. What was the intent? What was this clause designed to do?

Prof. ROSEN: So this is a time when Southern congressmen are coming back into the Union. Their majorities are augmented because of the freed slaves, and they are interested in forcing Congress to repudiate the Union debt and to pay off the Confederate debt. And they also want to give the nation a big bill for what they claimed was the value of the slaves that had been freed by the Emancipation Proclamation in the 13th Amendment.

So the existing Republican majority was determined that they not be able to do this, and they passed Section Four in the 14th Amendment to prohibit a temporary political majority from repudiating the Union debt obligations and assuming other obligations.

BLOCK: So at the time that this was approved back in 1868, repudiation referred to what exactly?

Prof. ROSEN: After the Civil War, repudiation would've been a formal act by Congress saying: We are not going to pay the Union debt. That's not what's going on here. The big debate now is what a default or a threat to default be the equivalent of repudiation? Strict constructionist say: No. Unless Congress formally says we are ever going to pay the debt, then this constitutional provision is not triggered.

The Democrats who support this constitutional argument say in effect, if you threaten not to pay obligations, that's the functional equivalent of a default, and therefore, the Constitution is implicated.

BLOCK: Has there been case law on this, Jeffrey, this question - this language in the 14th Amendment that the validity of the public debt of the United States shall not be questioned?

Prof. ROSEN: There's just one Supreme Court case that seems to cast light on this question. It was called Perry versus United States. It was decided in 1935. And in that case, the Supreme Court seem to argue that this debt clause should be interpreted broadly rather than narrowly. And supporters are seizing on that language to say we should not construe the debt clause strictly, but instead, construe it expansively.

BLOCK: Now, that would support their argument that you could apply it in this case.

Prof. ROSEN: Exactly so.

BLOCK: All of this, do you think, just a lot of grist for constitutional scholars, 14th Amendment scholars in particular, and no real political reality?

Prof. ROSEN: It could have political consequences. We shouldn't for a moment dismiss the possibility that serious constitutional arguments about clauses that haven't thought of for a long time can transform political debates. In Bush v. Gore, in the healthcare argument, these are all cases where the constitutional arguments were made up on the fly. But that doesn't mean that they're not plausible.

The truth is that the situation today is similar, although not identical to the one that confronted the nation right after the Civil War. And the arguments on both sides are strong, plausible and deserved to be debated in the public arena.

BLOCK: Okay. Jeffrey Rosen, again, thanks for coming in.

Prof. ROSEN: Thanks so much for having me.

BLOCK: Jeffrey Rosen, professor of law at the George Washington University.

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