The Debt Ceiling's Constitutionality

[Don Zeko]

Over the past few days the liberal blogosphere has been discussing the so-called constitutional option for dealing with the debt ceiling, in which Barack Obama waits for budget negotiations to break down, then announces that he believes the debt ceiling violates the 14th Amendment and orders the Treasury to keep on issuing new debt. More significantly, the administration has been pointedly not ruling it out in public statements over the last few days. So given that this seems like an increasingly likely resolution to the crisis, I wanted to canvass the BHTV forum. Is this constitutional argument correct? If not, does it matter?

My guess is that if Obama decides to do this, he can get away with it. Nobody will have standing to sue, I doubt the Supremes will be eager to get in the middle of this fight, and even if they do I doubt that Anthony Kennedy wants to vote a double-dip recession into existence. So as I see it, the only real recourse available to Republicans here is impeachment, which I doubt they'll attempt and which would be doomed to failure in the Senate even if they try it.

[chiwhisoxx]

this strikes me as very similar to the republican argument re: obamacare's constitutionality. plausible in some ways, but dubious overall.

[uncle ebeneezer]

An example.

If Obama does choose to move forward, he will be doing so on strong legal footing. In Freytag v. Commissioner (1991), the Supreme Court held that the president has “the power to veto encroaching laws . . . or to disregard them when they are unconstitutional.” The final word still may lie with the Supreme Court, but in the interim, the president need not wait for its opinion. “As a simple matter of constitutional logic, the president can refuse to enforce a statute he believes violates the Constitution,” said Professor Barry Friedman of NYU Law School in a telephone interview with me. “In fact, he is sworn by oath not to enforce it,” added Friedman, author of the book “The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.”

I would be interested to hear from those more knowledgable than me on this matter (which includes just about everyone )

[Wonderment]

So as I see it, the only real recourse available to Republicans here is impeachment, which I doubt they'll attempt and which would be doomed to failure in the Senate even if they try it.

Their other recourse is crucifixion (figuratively speaking).

[stephanie]

Originally Posted by Don Zeko

Over the past few days the liberal blogosphere has been discussing the so-called constitutional option for dealing with the debt ceiling, in which Barack Obama waits for budget negotiations to break down, then announces that he believes the debt ceiling violates the 14th Amendment and orders the Treasury to keep on issuing new debt. More significantly, the administration has been pointedly not ruling it out in public statements over the last few days. So given that this seems like an increasingly likely resolution to the crisis, I wanted to canvass the BHTV forum. Is this constitutional argument correct? If not, does it matter?

Good timing -- they addressed it in the Serwer-Weigel diavlog almost as a response to your interest, although one could have issues with the nature of the discussion. I'm guessing the discussion is going to move over there.

[jimM47]

With respect to that particular point Michael Stern says:

The quote from Freytag is from Justice Scalia’s concurrence, not the majority opinion. Even if it were in the majority opinion, it would be dicta, not a holding. And Justice Scalia is referring to laws that encroach on the constitutional powers of the executive (which no one claims that the debt limit does), not all laws.

Seems right to me. Scalia's concurrence for four justices is basically a dissent that happens to reach the same outcome as the majority opinion.

[jimM47]

I think I answer most of those questions here. Remember that whatever Anthony Kennedy thinks, it is usually many months (or years) before a case gets to the Supreme Court, and any economic consequences start hitting when the District Courts start ruling.