Friday, October 01, 2021

Section 4 of the Fourteenth Amendment and Departmentalism

Gerard N. Magliocca

First I want to concur with Jack's post below. But then I want to provide a link to this new Washington Post article, which implies that the Administration thinks that it can do nothing if Congress fails to raise the debt ceiling. I grant that this position may be little more than an attempt to pressure Congress to do its job, but let's probe a bit deeper.

One way of understanding Congress's failure to raise the debt ceiling or provide for another way to pay for our outstanding obligations is that they do not think that this inaction violates the Fourteenth Amendment. You can plausibly defend that view, although I think it's incorrect. The President, however, can reach the opposite constitutional conclusion and decide that the proper response is to prioritize paying bondholders. Perhaps there is not enough money in the till to pay them off fully, but Perry suggests that so long as they are substantially repaid there is no constitutional problem, as opposed to a financial problem. Besides, the President's action can be challenged in court by those who (presumably) are getting stiffed by Uncle Sam. 

I also must say that I did not understand what the unnamed source in the article means by saying that the President cannot act unilaterally if Congress fails to act because that would be devastating to the country. It would be devastating to the country to stop the country from being devastated?  

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