The 14th Amendment was added to the U.S. Constitution in 1868 in the aftermath of the Civil War. It deals with issues resulting from that conflict. Its most famous language is the so-called “equal protection” clause: no state shall “deny to any person within its jurisdiction the equal protection of the laws”.
The rebellious Southern states were required to ratify the 14th Amendment in order to regain representation in Congress. Of course, since they were traitors (a.k.a. “rebels”), Southern politicians bitterly opposed the 14th Amendment. How dare the Federal government require that all persons, including former slaves, receive “equal protection of the laws”!
Now, 152 years after the Southern rebellion, we are facing a new crisis, primarily instigated by politicians from the same Southern states. This time it would be a financial and economic crisis, brought about by America’s failure to pay its debts. Nobody knows how the crisis would play out, but since bonds issued by the Treasury Department are the foundation of our nation’s banking system and play a vital role in the banking systems of other countries, it’s likely that America’s failure to honor its debts would do more damage to the global economy than the horrendous financial crisis of 2008.
The Constitution makes no mention of a debt ceiling. That limitation on the Treasury Department’s ability to take on new debt (i.e. to borrow money by selling government bonds) was foolishly imposed by Congress in the Liberty Bond Act of 1917. With that law, Congress gave itself the authority to set a maximum dollar amount for the federal debt, despite the fact that it’s Congress that tells the President how much money to spend when it approves the Federal budget.
Since the members of Congress are relatively sensible for the most part, they periodically raise the debt limit so the Federal government has enough money to do the various things the law requires it to do (make Medicare payments, buy cruise missiles, etc.).
If Congress refuses to raise the debt limit, therefore, the President is caught in a dilemma. He either has to borrow more money without Congressional approval or not pay what the government owes to bondholders, employees, government contractors, retirees and so on — thereby doing untold damage to the world’s economy and our own national security.
Fortunately, the 14th Amendment includes a clause devoted to the national debt. Section 4 of the amendment 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. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Legal scholars are now arguing about which law the President should obey. I’m not a legal scholar, but I have no doubt that the appropriate thing for the President (any President) to do if Congress fails to raise the debt limit, thereby “questioning the validity” of the public debt, is to obey the Constitution and borrow whatever funds are necessary to pay the government’s bills.
The Constitution, after all, is the “supreme law of the land”. Even crazy Tea Party people claim to honor the Constitution. The Constitution, which requires the President to “preserve, protect and defend” it, should take precedence over the Liberty Bond Act of 1917.
The last time there was a Republican-generated debt ceiling crisis, the President ruled out the 14th Amendment as a solution. At yesterday’s press conference, however, he mentioned the 14th Amendment but didn’t rule it out. He did say it isn’t a “magic bullet” and made the valid point that bonds issued without clear Congressional approval might be of questionable value. For example, buyers would probably demand higher interest rates before purchasing such government securities.
Nevertheless, it still seems that the most prudent course would be for the President to ignore the debt ceiling and continue to issue government bonds. In fact, it might be a wonderful strategy.
One likely outcome is that the Republican majority in the House of Representatives would impeach the President, just like they impeached President Clinton. But the Democrats in the Senate would never convict Obama of “high crimes and misdemeanors” for using his emergency powers to protect our national security. In fact, it’s very likely that the House Republicans would become even less popular than they are now, leading to gains for Democrats in the 2014 mid-term election.
Some recent polling suggests the Democrats might pick up as many as 30 seats in the House if the election were held today. Since they only need 18 more seats to become the majority party in the House, Obama needs to do whatever he can to maintain the Republicans’ unpopularity. Goading them into a misguided impeachment vote could do the trick, giving the Democrats control of both houses of Congress for the last two years of his Presidency. No more Speaker of the House John Boehner!
The Republicans would still have the filibuster in the Senate, of course, but that’s a topic for another day.