an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
(Cross-posted at Concurring Opinions, and following on Jack's post)
Every constitutional provision eventually gets its day in the sun, and now it is Section Four of the Fourteenth Amendment’s turn. Here is the language of what my friend Michael Abramowicz calls the Public Debt Clause:
“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.”
This language was intended to protect Union debt incurred during the Civil War, but the language sweeps more broadly. In Perry v. United States, 294 U.S. 330, 354 (1935) the Supreme Court (in a plurality opinion by Chief Justice Hughes) said the following about this text:
“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 which applies as well to the government bonds in question, and to others duly authorized by the Congress, as to those issued before the amendment was adopted. Nor can we perceive any reason for not considering the expression ‘the validity of the public debt’ as embracing whatever concerns the integrity of the public obligations.”
I want to add another observation about the debt ceiling. The statute, if interpreted to preclude the issuance of new debt to pay off old debt, may also violate the Public Credit Clause. In Perry, Chief Justice Hughes said:
“The Constitution gives to the Congress the power to borrow money on the credit of the United States . . . The binding quality of the promise of the United States is of the essence of the credit which is so pledged. Having this power to authorize the issue of definite obligations for the payment of money borrowed, the Congress has not been vested with authority to alter or destroy those obligations.”
In other words, the Public Credit Clause is an exception to the principle that one Congress cannot bind another through ordinary legislation. Thus, Congress arguably lacks the enumerated authority under Article One to default and is expressly barred from doing so under Section Four. Of course, the authority for both conclusions is slender–a plurality opinion in one case.
Let me direct your attention to some other helpful sources. The first is Professor Abramowicz’s article on “Beyond Balanced Budgets: Fourteenth Amendment Style,” 33 Tulsa L. Rev. 561 (1997). The second would be the briefs in Perry. The third (to toot my own horn) is my draft paper on “The Gold Clause Cases and Constitutional Necessity.”
Finally, I am going to go through my Bingham research to see what he said about Section Four. He did talk about that provision extensively on the campaign trail, though not, to my knowledge, on the House floor.
I want to add another observation about the debt ceiling. The statute, if interpreted to preclude the issuance of new debt to pay off old debt, may also violate the Public Credit Clause.
The debt ceiling is the simply the limit of the Congress' permission to the President through the Treasury to borrow money.
The debt ceiling in no way prevents the Treasury from rolling over the principal of old debt into new debt so long as the total principal remains under the ceiling.
If the Congress declines to raise the debt ceiling, the Public Debt Clause appears to require the President use federal tax revenues to pay off the interest on the public debt before any other obligation under law.
The idea being pitched by the Dems that the Public Debt Clause permits the President to seize Congress' power to borrow money has no merit under law and would trigger the most fundamental constitutional crisis of our lifetime.
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