14th Amendment signature page.
14th Amendment signature page. National Archives
Maybe all the fuss about the debt-ceiling being raised (or not) is beside the point if, as some observers are increasingly saying, the law that created the debt limit was unconstitutional to start with.
President Obama clearly didn't want to touch that radioactive issue when Chuck Todd of NBC News asked him about the constitutionality of the debt-ceiling law at the White House news conference Wednesday.
But others more willing to discuss it have concluded that the debt-ceiling statute, well-intentioned as it was, can't overcome the U.S. Constitution's 14th Amendment.
That post-Civil War amendment essentially says the public debts of the U.S. can't be questioned.
The relevant part reads:
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.
Because the debt-limit law would seem to raise questions about U.S. public debt that was authorized by law, it would appear to fly in the face of the 14th Amendment, according to some fairly smart people.
Here's Bruce Bartlett over at the Fiscal Times, one of the most eloquent proponents of the idea that Obama could make a 14th Amendment argument for ignoring the debt-ceiling law:
A more radical solution, Plan B, would be to simply disregard the debt limit altogether on constitutional grounds, an idea I suggested in The Fiscal Times on April 29. University of Baltimore law professor Garrett Epps made a similar suggestion in The Atlantic on May 4.
The essence of the argument involves section 4 of the Fourteenth Amendment to the Constitution, which reads: "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."
In my view and that of Prof. Epps, this means that the president would have constitutional authority to take extraordinary measures to protect the public credit and prevent a debt default even if it means disregarding the debt limit, which is statutory law subordinate to the Constitution.
I now feel even more strongly that the Fourteenth Amendment trumps the debt limit. There is strong support for this position in an article by George Washington University law professor Michael Abramowicz. Writing in the Tulsa Law Journal ("Beyond Balanced Budgets, Fourteenth Amendment Style," 33:2, Winter 1997, pp. 561-612), he concludes that any government action "making uncertain whether or not a debt will be honored is unconstitutional..."
The aforementioned Epps has even composed a speech the president could give if he were to direct Treasury Secretary Tim Geithner to proceed financing the government and paying the nation's creditors after the Aug. 2 drop dead date as though nothing had happened.
Of course, if the president took this course, he would spark a constitutional crisis of the first order. Advocates of this position even predict there would be calls for impeaching the president.
The Republican-led House could probably even vote articles of impeachment though the Democratic-controlled Senate would no doubt fail to convict him.
Also, ignoring the debt-limit law wouldn't necessarily make the nation's creditors any less nervous since it would be another indication of how dysfunctional the U.S. government had become.
But at least the U.S. could avoid a historic default on its obligations. That certainly would be worth enduring a constitutional crisis, Bartlett and others say.
Another aspect of this 14th Amendment question that makes the possibility that the president could seize on it so interesting is that it would allow Obama to try to out Tea Party the Tea Party by pinning its argument on the pre-eminence of the Constitution.
All in all, it's a fascinating idea to ponder over the long July 4 holiday weekend.