Tuesday, July 26, 2011

Why I’m Not Thrilled With the Fourteenth Amendment Solution

We’ve heard a lot of talk lately about the “Fourteenth Amendment solution” to the debt ceiling crisis, but I’m not convinced and I’ll tell you why.

First, what is the “Fourteenth Amendment solution”? Well, the argument seems to be that Section 4 of the Fourteenth Amendment gives Pres. Obama the power to continue to pay the nation’s bills even if the federal government’s spending passes the statutory debt ceiling, which the Administration predicts will occur on August 2. More precisely, the argument really asserts that the debt ceiling itself is unconstitutional under Section 4 of the Fourteenth Amendment, which says:

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.

Obviously, the purpose of the first sentence of Section 4 was to prevent the federal government from reneging on war bonds issued to finance the Civil War. Recall that once all of the rebelling states were re-admitted to the Union, they would retain their seats Congress (and in particular, in the Senate, where the Southern states had a much larger percentage of seats than they do today); and those states would, of course, have Electors who could play a significant role in electing future presidents. So, the first sentence of Section 4 ensured that no matter who controlled the federal government in the future, the government could not escape its obligation to pay its Civil War debts.

But the first sentence of Section 4 isn’t limited to Civil War debts, or to debts incurred up to and including the adoption of the Fourteenth Amendment. It says, quite clearly: “The validity of the public debt of the United States … shall not be questioned.”

That has led a number of commentators, including Karoli at Crooks and Liars and Jack Balkin at Balkinization – both of whom, I admit, are smarter than I am – to suggest that Pres. Obama may well be able disregard the debt ceiling under the express terms of Section 4. Balkin, in particular, goes beyond the language of Section 4 to explain its history:

The original purpose of Section Four, which is reflected in its text, was to prevent political disruption and party wrangling over the public debt following the Civil War. However, the language of the Amendment went beyond this particular historical concern. It was stated in broad terms in order to prevent future majorities in Congress from repudiating the federal debt to gain political advantage, to seek political revenge, or to try to disavow previous financial obligations because of changed policy priorities.

As Balkin points out, the proponents of the Fourteenth Amendment were particularly keen on ensuring that the United States would not be held accountable for the debts of the former Confederacy; but that wasn’t the only concern that motivated Section 4:

Senator Benjamin Wade of Ohio was a leader of the Radical Republicans and the President pro tempore of the Senate. … [Wade argued] [i]t was also necessary to guarantee the Union debt, because former rebels or rebel sympathizers who returned to Congress after the war might, out of selfish or malicious motives, seek to prevent Union soliders and their widows from being compensated. Moreover, there was no guarantee of what a later Congress, motivated by different priorities, might do. Shifting majorities in a future Congress might be willing to sacrifice the public debt or the interests of pensioners in the name of political expediency. Thus, it was as important to guarantee the Union debt as it was to repudiate the Confederate debt.

So Wade proposed language that would have provided: “The public debt of the United States, including all debts or obligations which have been or may hereafter be incurred in suppressing the insurrection or in carrying on war in defense of the Union, or for payment of bounties or pensions incident to such war and provided for by law, shall be inviolable,” which is, of course, very similar to the final language of Section 4. In support of his proposal, Wade said:

I believe that to do this will give great confidence to capitalists and will be of incalculable pecuniary benefit to the United States, for I have no doubt that every man who has property in the public funds will feel safer when he sees that the national debt is withdrawn from the power of a Congress to repudiate it and placed under the guardianship of the Constitution than he would feel if it were left at loose ends and subject to the varying majorities which may arise in Congress.

Balkin goes on to provide quite a bit more detail from the legislative history of Section 4, but Wade’s comments – particularly his statement that “the national debt [should be] withdrawn from the power of a Congress to repudiate it – give considerable support to the proponents of the “Fourteenth Amendment solution” today. If the purpose of Section 4 was to prevent Congress from repudiating the national debt forever into the future, then it follows logically that Congress should not be able to put an artificial ceiling on the national debt and thereby force the government into default.

So, why, then, am I unimpressed? It’s not because Balkin (or my friend Karoli) is wrong; it’s because there’s no clear-cut way to test the theory other than to do it and see what happens. Let’s assume that Pres. Obama decides he’s not going to allow the government to default on its debts and further decides that there are no acceptable legislative proposals on the table to increase the debt ceiling. So, he vetoes any bill passed by Congress (or, perhaps, Congress simply fails to act before the government reaches the debt ceiling), and he orders the federal government to keep paying its debts.

Then what?

Clearly, members of Congress (or, at least Republicans in Congress) believe the debt ceiling legislation is constitutional and the President is therefore legally bound by it. In other words, once the debt ceiling is passed, the President can no longer spend money, and if he does so he’s violating the law. In theory, Congress could sue the President to stop him writing checks off of the federal treasury, but it is unlikely any court would seriously entertain the case. Courts generally do not want to weigh in on political disputes between the Congress and the Executive Branch, as the Supreme Court explained in Baker v. Carr, 369 U.S. 186, 201 (1962) (a case that did not, in fact, involve such a dispute):

We have said that “In determining whether a question falls within [the political question] category, the approriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.” Coleman v. Miller, 307 U.S. 433, 454 -455. The nonjusticiability of a political question is primarily a function of the separation of powers.

Which is not to say the courts would, in fact, refuse to consider a challenge to the President’s reliance on Section 4 to ignore the debt ceiling, but to say that the “political question” doctrine gives the courts an easy out – an out I think the courts would likely avail themselves of.

So, therein lies the problem. If the courts say that any dispute between Congress and the President over the debt ceiling and the meaning of Section 4 of the Fourteenth Amendment is a non-justiciable political dispute, that doesn’t end the dispute. It just means Congress has to look elsewhere for a resolution. And you know what that means.

Impeachment.

I have little doubt that this Congress would try, at least, to do just that. Absurd, you say? Yes, it is. It’s patently absurd. But as Gerald Ford once observed: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history … .” And who holds the majority of seats in the House of Representatives today? A Republican Party that’s being led around by the nose by the Tea Party. Don’t think they wouldn’t jump at the chance to begin impeachment proceedings.

So as of now, here are our really unpalatable choices: Allow the country to go into default, or rely on an untested provision in Section 4 of the Fourteenth Amendment and all but guarantee impeachment hearings in the next few months.

Or, as odious as it may seem, negotiate a settlement of the dispute.

© 2011 David P. von Ebers. All rights reserved.

5 comments:

  1. I always appreciate these analyses. I am so frustrated with the Republicans in Congress that I'm ready to smack them upside the head (metaphorically speaking).

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  2. I'll tell you another reason I don't like the "14th Amendment Solution": it's one more step toward making the president into a king. If Obama is given the power to unilaterally decide "I don't care how Congress limits my ability to spend money; I'm going to do it anyway" then it becomes a precedent for future presidents.

    I'm one of those lefties who doesn't like Obama because I see him as an old-fashioned Republican (who's to the right of Eisenhower.) I realize you don't dislike him the way I do, Consigliere von Aardvark. But you gotta admit, if Obama pulls this, some future Repig is going to do it with more egregiousness. I'm with Glenn Greenwald on the idea that expansion of executive power, even if it's under a relatively benign fellow like Hopey, is not a good idea.

    The solution is for Congrifts to get its act together and do its job of governing, dammit. That would require acting like adults. Congress, even with the clowns who were in there during past depraved decades (you can't tell me that the mooks who were pushing segregation in the 1950s, and attending KKK rallies in the 1920s, and giving the country away to the Robber Barons in the 1880s were noble people) could somehow do its duty. The fact that it cannot now is another sign that America is in terminal decline.

    Glad I'm outta there, mate. It's fun to be absurdist over at Teh Gen'l's site, but it's really giggling past the graveyard, a graveyard that has millions of holes that are already dug and waiting to be filled with new meat. Good luck with what's to come, still within the course of our lifetimes.

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  3. I don't know much about the legal arguments, but I'm pretty damn sure that articles of impeachment would be filed within minutes of any invocation by Obama of a "14th Amendment solution", and where impeachment may go has no bearing, whatsoever, or the legality of anything.

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  4. Er, that last comment had the wrong Twitter address, and was actually me.

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  5. The President doesn't "have the power" to raise the debt ceiling under the 14th Amendment, he is OBLIGATED to continue paying America's debts by the 14th Amendment and if he doesn't he is violating Constitutional law. That's really the point here.

    As to impeachment, I think it would excite Obama's base and ensure a victory in 2012.

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