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
Abbe Gluck abbe.gluck 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
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Sean Wilentz on the Debt Ceiling Crisis: Imprudent Advice
The distinguished historian Sean Wilentz offers his advice to President Obama on the debt ceiling crisis. First, Wilentz argues that the Republicans are acting in violation of Section 4 of the Fourteenth Amendment. On this particular issue, I agree with Wilentz for reasons I've explained elsewhere.
Second, analogizing Obama's actions to those of Lincoln in the early days of the Civil War, Wilentz argues that the President could assume emergency powers and save the Union just as Lincoln did: "he could pledge that, if worse came to worst, he would, once a default occurred, use his emergency powers to end it and save the nation and the world from catastrophe." Even if impeached, Obama would "undoubtedly earn the gratitude of a relieved people."
Here I am not so sure. My view is that the President does not have the unilateral power under Section 4 to disregard the debt ceiling. He needs congressional authorization, because only Congress has the power to borrow money on the credit of the United States (Article I, section 8). As I have explained elsewhere, in the most dire emergency this authorization might even
come after the President acts, as it has in the case of military
emergencies, but an authorization is still required.
Wilentz's op-ed therefore raises four different issues, which he does not adequately address.
First, although Lincoln temporarily suspended habeas corpus in 1861, Congress subsequently ratified his actions (twice, in 1861 and 1863). If Wilentz is arguing that Obama could issue new debt without Congress subsequently authorizing it, the analogy to Lincoln is not appropriate. Given the nature of this Congress, in which both House and Senate Republicans can block ordinary legislation, subsequent authorization is unlikely, not only because it would be an admission of defeat, but because it would suggest that their own actions in holding the debt hostage were illegal under Section 4 of the Fourteenth Amendment.
Second, Obama has an independent constitutional duty under Section 4 not to place the validity of the debt of the United States into question. Issuing unauthorized debt might do precisely this, because bondholders might treat the new debt as invalid or of questionable validity. In that case, the exercise of emergency powers would be self-defeating and unjustified.
Third, Wilentz assumes that Obama could stabilize the crisis by acting on his own. But there is good reason to believe that the opposite would occur. If Obama is impeached, then the issue will shift from the constitutionality of what the House has done (using the validity of the debt as hostage) to the legality of what Obama has done. He will lose the higher ground in the debate, and the country's focus will be taken over by an impeachment trial for months, as the economy spirals ever downward. In the meantime, the validity of debt issued by the President will be repeatedly attacked in the courts by allies of the Republicans--who could purchase the new bonds and then demand a refund in order to create standing for a lawsuit.
Wilentz imagines that in the middle of such an impeachment trial, the country will rally around the President. But he forgets that Tea Party Republicans in the House are strongly supported by the people who elected them. These people already believe that Obama is a tyrant who secretly wants to destroy the Constitution. Acting unilaterally will simply confirm their worst suspicions.
Fourth, by acknowledging in advance that he will disregard the debt ceiling, Obama gives Republicans no reason to act responsibly in a debt ceiling crisis. They can happily refuse to budge knowing that Obama will bail them out and subject himself to impeachment. Even if Obama planned an emergency action along the lines of what Wilentz suggests, it would be foolhardy for him to announce it in advance. His proper strategy is to insist that the 14th Amendment does not give him the power to raise the debt ceiling without Congressional authorization, which is also the correct legal answer.
In short, although Wilentz's history may be sound, his normative prescriptions are not.