Reviewing the 14th Amendment debt ceiling argument

Nancy Pelosi’s recent comments about using the 14th Amendment to avoid the debt ceiling aren’t new, and in fact, they invoke an extensive argument from 2011 about the Constitution and Congress.

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Nancy Pelosi

“I think the 14th Amendment covers it,” said Pelosi, the House minority leader, on Wednesday. “The president and I have a disagreement in that regard, I guess. I guess … I would never have taken that off the table.”

With the debt ceiling set to kick in on October 17, and with Democrats and Republicans seemingly far apart on a deal, folks are looking back at the 2011 debt-ceiling crisis for clues about how the current situation will unfold.

Back then, the Budget Control Act of 2011 was passed on August 2 to end the crisis, about two weeks before the United States would have defaulted on its debt. Standard & Poor’s took the unprecedented action of downgrading the nation’s debt anyway.

Another credit agency, Fitch Ratings, warned early this year it would downgrade the U.S. government’s debt if another debt-ceiling crisis happened, and payments were affected.

This time, a different set of issues is before Congress and the president, with deep budget cuts from the sequester and a delay of the Affordable Care Act (or Obamacare) as bargaining chips.

And for now, there’s no indication the Obama administration will cite the 14th Amendment as a rationale to resume borrowing, without the permission of Congress.

The argument over the 14th Amendment goes like this: Section IV says that “the validity of the public debt of the United States, authorized by law … shall not be questioned.”

Therefore, if you believe that the “public debt” can’t be questioned in any context, the debt ceiling itself is unconstitutional.

One of the more recent proponents of the 14th Amendment threat is former President Bill Clinton, who broached the idea in July 2011.

In an online interview with The National Memo, Clinton said Newt Gingrich’s Republican caucus first came up with the 14th Amendment idea during Clinton’s time as president, and Clinton’s team researched the constitutional implications.

Clinton said he would use the 14th Amendment “without hesitation, and force the courts to stop me.”

Last December, Obama spokesman Jay Carney said the 14th Amendment was off the table as a negotiating ploy.

“This administration does not believe that the 14th Amendment gives the president the power to ignore the debt ceiling—period,” Carney said.

And back in 2011, President Obama reacted to President Clinton’s comments with a widely quoted response: “I have talked to my lawyers. They are not persuaded that that is a winning argument.”

But could the White House reverse its course, and decide that it had the power to borrow despite the debt-ceiling law?

Again, three years ago, when the scenario was widely discussed, there were vastly different opinions.

Among those arguing against the 14th Amendment as a debt tool was Sanford Levinson, a law professor at the University of Texas, who told the New York Times that the Civil War-era amendment was just that.

“Nobody would argue that Section 4 is clear in its meaning, other than at the time everyone thought that the South, if they ever got back in control, would not pay Civil War debt,” he said.

Another prominent professor, Yale’s Jack Balkin, argued that President Barack Obama had the power, under the 14th Amendment, to make sure bills were paid that were incurred by the government.

“He will indeed issue new debt if worse comes to worse, but that is because he has no other choice. And he will need Congress to authorize what he does eventually,” Balkin said on his blog, Balkinization.

Balkin’s analysis was that a congressional stamp of approval was problematic for the president.

“If Congress does not approve it after the fact, then the president has acted illegally, and he may be impeached and removed from office,” he said.

For now, this might all be a moot point, since the Obama administration has given Congress two options on the debt ceiling: raise it or put the government in default on its debt.

But as we get closer to the October 17 debt deadline, it won’t be a great surprise if more talk about the 14th Amendment surfaces.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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