Can Obama Extend the Debt Ceiling on His Own?

Ronald Dworkin
http://www.nybooks.com/blogs/nyrblog/2011/jul/29/can-obama-extend-debt-ceiling-his-own/
July 29, 2011 

As the debt ceiling fiasco continues unresolved and
increasingly dangerous, with no agreement among the
House, the Senate and the White House yet in sight, an
obscure and forgotten constitutional clause has suddenly
come under scrutiny. The Fourteenth Amendment, adopted
after the Civil War, provides that "The validity of the
public debt of the United States, authorized by law .
shall not be questioned." Does that clause mean that it
is unconstitutional for Congress to refuse to raise the
debt ceiling - the amount the nation is legally
permitted to borrow - in our present circumstances, and
that the President is therefore constitutionally
permitted to borrow money on his own authority? The
present Congressional authority will expire on August 2;
it is far from certain what will happen to our economy
if that authority is not extended before then. It seems
very likely, however, that if the President does not
then act on his own the nation will default on its
treasury bonds and other solemn legal obligations,
including payments due millions of citizens under Social
Security.

The "debt shall not be questioned" clause was added to
the Fourteenth Amendment for a specific and immediate
purpose: to prevent the new Southern members of
Congress, should they gain a majority, from cancelling
the debt the Union had incurred in the war. But
constitutional interpretation is not a catalogue of
historical anecdotes; it is a matter of principle and we
are therefore required to identify the principle on
which the authors of the clause had to rely. As Chief
Justice Hughes said of the clause in 1935, speaking for
a unanimous Supreme Court, "While this provision was
undoubtedly inspired by the desire to put beyond
question the obligations of the government issued during
the Civil War, its language indicates a broader
connotation. We regard it as confirmatory of a
fundamental principle ."

The general contours of that fundamental principle seem
clear enough. Congress does not have authority, even by
a substantial majority, to dishonor the nation by
repudiating outstanding debts it has authorized the
nation to incur. The fiscal integrity of the United
States is sacred and requires constitutional protection.
Does that principle apply to the debt ceiling crisis?

Of course the principle does not prevent Congress from
refusing to authorize new obligations. Obviously,
Congress may modify or even extinguish the Social
Security or Medicare programs prospectively. But the
Republican majority in the House now refuses to permit
the country to meet debts duly authorized in the past
that remain duly authorized now, unless the Democrats
and the President agree to a radical reduction in
essential public services that they would never
otherwise accept. That is playing blackmail with the
nation's honor. It threatens exactly the kind of forced
default that the principle behind the debt clause
declares it has no authority to inflict. I believe the
best, principled, interpretation of the clause gives the
president authority to ignore that blackmail and to
borrow enough to meet the nation's standing legal
obligations.

Many academic and other constitutional lawyers agree,
and even Senator Chuck Grassley, a conservative
Republican, says that this constitutional argument
cannot be dismissed. However, Professor Lawrence Tribe
of the Harvard Law School, a very distinguished
constitutional lawyer, disagrees. He writes that the
argument I have just endorsed proves too much. "It would
mean that any budget deficit, tax cut or spending
increase could be attacked on constitutional grounds,
because each of those actions slightly increases the
probability of default." But I believe Professor Tribe
has confused the principle I describe with a different
one: that Congress lacks authority to make any decision
that might decrease the nation's treasury and so make
national default "slightly" - even if only theoretically
- more likely. This would indeed be absurd. But the
Republicans now threaten action that they know would
make default inevitable: indeed that inevitability is
essential to their blackmail strategy. That violates the
very different principle I described and that Chief
Justice Hughes had in mind: it claims Congressional
authority knowingly to make it legally impossible for
the nation to act honestly.

Of course it is an entirely different question whether
it would be politically wise for the President to rely
on the "debt" clause of the Fourteenth Amendment to
ignore Congress's failure to extend the debt ceiling.
Obama has said that he has "talked to my lawyers" and
"they are not persuaded that [relying on the debt
clause] is a winning argument." That is a careful
statement. It does not say that either his lawyers or he
are persuaded that it is not a winning argument, and of
course there is a difference between a "winning"
argument, which means one a court would probably accept,
and a "correct" argument that he himself could honestly
endorse.

Some Republicans have declared that if the President
does accept the constitutional argument, and acts
without their consent, they will try to impeach him.
That would take only a majority of the House, which the
Republicans control. Impeachment would be a tragedy
because, even though the Democratic Senate would
certainly refuse to convict, the process would waste a
huge amount of the President's time at a crucial and
difficult moment of our history. But surely even the Tea
Party representatives can understand that they would
make fools of themselves by declaring that a president
is guilty of "a high crime or misdemeanor" whenever he
interprets the Constitution in a way they believe wrong,
particularly when a substantial number of the nation's
lawyers agree with him.

One enormous consequence of the shaming national
disgrace we are now enduring will not be known until
November of 2012. But I doubt very many now uncommitted
voters would disapprove of a president who acted under a
reasonable interpretation of the law to allow the
government payments on which they rely to continue, and
to prevent damage to our international credit that would
inevitably increase their taxes and might well
eventually savage their standard of living.

---

Ronald Dworkin is Frank Henry Sommer Professor of Law
and Philosophy at NYU and Jeremy Bentham Professor of
Law and Philosophy at University College London. His
books include Is Democracy Possible Here? (2006),
Justice in Robes, Sovereign Virtue: The Theory and
Practice of Equality, and Freedom's Law. He is the 2007
winner of the Ludvig Holberg International Memorial
Prize for "his pioneering scholarly work" of "worldwide
impact."

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