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Mon Dec 31, 2012, 05:50 PM

The validity of the public debt of the U.S.....shall not be questioned (14th Amendment)

The whole fourth section of the fourteenth amendment to the United Sates Constitution reads

Section 4:The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bonuses for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

It seems very clear to me that the United States government is responsible for all debts incurred which are a result of any duly enacted law by Congress, past or present. As a result, the debt ceiling itself is unconstitutional. This amendment, actually, makes it unlawful to even "question" such debt. I would interpret that to mean that law makers (and even private citizens) can't even intimate that a financial obligation of this country should not be paid.

When the debt ceiling debate starts, I hope we clarify the meaning of this amendment and let's see what the "strict constructionists" think of the meaning of the constitution now.

Link:
http://www.law.cornell.edu/constitution/amendmentxiv

38 replies, 3066 views

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Reply The validity of the public debt of the U.S.....shall not be questioned (14th Amendment) (Original post)
louis c Dec 2012 OP
grantcart Dec 2012 #1
Yo_Mama Dec 2012 #16
grantcart Dec 2012 #18
Yo_Mama Dec 2012 #19
spanone Dec 2012 #2
Deep13 Dec 2012 #3
Cha Dec 2012 #4
annabanana Dec 2012 #5
n2doc Dec 2012 #6
louis c Dec 2012 #7
FreeJoe Dec 2012 #8
louis c Dec 2012 #9
Igel Dec 2012 #11
louis c Dec 2012 #12
Yo_Mama Dec 2012 #17
louis c Jan 2013 #23
Igel Jan 2013 #35
louis c Dec 2012 #13
Igel Jan 2013 #36
louis c Jan 2013 #37
jeff47 Dec 2012 #10
bemildred Dec 2012 #14
Yo_Mama Dec 2012 #15
louis c Jan 2013 #22
Jim Lane Jan 2013 #30
louis c Jan 2013 #31
Jim Lane Jan 2013 #32
Redfairen Dec 2012 #20
louis c Jan 2013 #21
buzzroller Jan 2013 #24
louis c Jan 2013 #25
buzzroller Jan 2013 #26
exboyfil Jan 2013 #27
louis c Jan 2013 #28
exboyfil Jan 2013 #29
DevonRex Jan 2013 #33
Faryn Balyncd Jan 2013 #34
louis c Jan 2013 #38

Response to louis c (Original post)

Mon Dec 31, 2012, 05:51 PM

1. I agree the whole debt ceiling charade seems unconstitutional to me.


Especially when it follows a budget approved by Congress.

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Response to grantcart (Reply #1)

Mon Dec 31, 2012, 10:12 PM

16. Congress hasn't passed a budget in years

Instead they go through continuing spending authorizations.

But you are confusing spending and debt. Congress has the power to raise revenue, authorize spending, and the power to raise money by borrowing. Only Congress has the power to raise money by borrowing. Section 8.
http://www.law.cornell.edu/constitution/articlei#section8

The Executive does not, and if the Executive were to do so without Congressional authorization, the debt would not be legal public debt subject to the 14th amendment.

Once Congress has authorized an expenditure, the authorized department of the Executive has that ability to spend that money - if we've got it. The authority to spend that amount of money does not extend to the ability to go out and borrow that money.

There is an ample body of caselaw long in existence that would govern the ajudication of such a legal question, should it ever occur. All corporations (non-natural persons) have designated officers with various powers which are granted to them by resolution. Take for example a Director of an Association. The association executes a resolution saying that this Director has the ability to spend up to such an amount. If, however, the Director wants to spend the money but the Association doesn't have it, that doesn't give the Director the authority to go out and borrow that amount of money - under contract law, the power to spend is not the power to borrow. The Director only has the legal authority to borrow if that power has been explicitly granted, and believe me, this question has come up before, and been settled before, and always to the detriment of the creditor which extended the unauthorized credit.

What happens in such a case is that the corporation (non-natural person) is NOT liable for the debt. The creditor may seek to recover from the person who actually borrowed the money without authorization, but of course this would not help any creditor of the Treasury because the Treasury has no assets in its own right.

This is not legal rocket science. It's kind of basic, really.

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Response to Yo_Mama (Reply #16)

Mon Dec 31, 2012, 10:42 PM

18. Well a lot of the nations' leading legal scholars disagree with you

So its not as simple as your condescending and oversimplified post suggests.

Public debt is public debt and whether it was done in a continuing resolution or a budget is not relevant.

Now it may be that it would be upheld but a substantial number of the leading legal scholars believe that the whole exercise may well not stand a test in court:

Google lists dozens of constitutional experts who don't think that it is constitutional, I will post from the first one:



http://www.washingtonpost.com/blogs/wonkblog/post/why-wont-obama-just-declare-the-debt-ceiling-unconstitutional/2011/07/29/gIQAe5xkhI_blog.html

But is Carney right? A growing number of top Democrats strongly disagree and think the 14th amendment option is a good last resort. “Is there anything that prohibits him from doing that?” Iowa Senator Tom Harkin told The Hill today. “The answer is no.” Thursday, House Minority Whip Steny Hoyer described it as the least bad option if Congress doesn’t act. Former President Bill Clinton’s on board, too. And a growing number of law professors and legal scholars are now arguing that Obama would actually prevail.

Yale’s Jack Balkin explains how this would work. At some point after Aug. 2, Obama would face the demands of multiple contradicting laws. By law, the government is supposed to pay out money that’s already been appropriated. But the Treasury’s obligations would exceed revenues, and, under debt-ceiling law, the government’s not allowed to print new currency or float new debt.

So, Balkin notes, Obama “has a constitutional duty to treat at least one of the laws as unconstitutional as applied to the current circumstances.” And, lo, Section 4 of the 14th amendment does say, “The validity of the public debt of the United States, authorized by law, … shall not be questioned.”

If Obama decided to treat the debt ceiling as unconstitutional and start floating new debt anyway, it’s not clear anyone could stop him. As Jeffrey Rosen writes in The New Republic today, individual members of Congress wouldn’t have standing to stop him—Congress would need to pass a joint resolution, which is unlikely given that Democrats control the Senate. It’s also unlikely that individual taxpayers or bondholders would have standing. “The most likely outcome is that the Supreme Court would refuse to hear the case,” Rosen argues. And if a case did somehow make it through, Rosen notes, even the conservative justices would likely rule in his favor—at least if they were consistent with their judicial philosophies. (Okay, so that’s not an ironclad assumption.)



As long as the President is spending public money on expenditures already approved by Congress then it would seem to fall into the 14th Ammendment guarantee of payment of debt.

If Congress wants the President wanted to stop the Executive from making particular expenditures all they would have to do is to pass legislation that ammends the previous spending authority.

To pass authorization specifically and then to deny the debt generally seems to be thin gruel and I would have the same opinion if it were a Democratic Congress and a Republican President. I wish we had stopped the charade when we controlled both houses in Congress, it is a childish exercise and has been since Congress started passing it in a fit of jealousy at an expanding executive.

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Response to grantcart (Reply #18)

Mon Dec 31, 2012, 10:57 PM

19. Youngstown

For those actually interested in separation of powers, the Youngstown case, and in particular, Justice Jackson's concurrence, have generally served as the template for future SC rulemaking:

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/youngstown.html

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter....


Since the powers to raise revenue and borrow debt are unequivocally allocated to Congress in the constitution, the Executive can do so only pursuant to Congressional authorization. This is implicitly conceded by those making your argument, because they imply that the authorization for the Executive to spend implies the authorization to borrow.

Yet this fails on several obvious counts, the most obvious of which is that Congress has explicitly limited borrowing by statute, which must be binding on the Executive, and removes any idea that the authorized spending constitutes an implied authorization to issue public debt in excess of the debt limit.

Indeed, if the SC were to take the authorization of expenditure to be an implied authorization to raise revenue, it would have to come down on the idea that Congress has just implicitly authorized the Executive to raise money by imposing taxes or imposts, which would make an utter mockery of the constitutional separation of powers.

You are looking at a 9-0 decision saying that such an attempt by Treasury is unconstitutional.

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Response to louis c (Original post)

Mon Dec 31, 2012, 05:53 PM

2. k&r...

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Response to louis c (Original post)

Mon Dec 31, 2012, 05:55 PM

3. So this is the law and the POTUS should just enforce it?

Maybe you're right.

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Response to louis c (Original post)

Mon Dec 31, 2012, 06:03 PM

4. Thank you, louis

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Response to louis c (Original post)

Mon Dec 31, 2012, 06:09 PM

5. Damn good point!

The tea partiers would turn the US into welchers, deadbeats...

1. welcher - someone who swindles you by not repaying a debt or wager
welsher
chiseler, chiseller, defrauder, grifter, scammer, swindler, gouger - a person who swindles you by means of deception or fraud


on edit: I have suspected that the repubs were nothing more than grifters for years. Sarah Palin laid it bare.

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Response to louis c (Original post)

Mon Dec 31, 2012, 06:11 PM

6. Ah, but I've been told today on DU that the constitution should be ignored

It is an outdated document that impedes progress, you see.

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Response to n2doc (Reply #6)

Mon Dec 31, 2012, 06:40 PM

7. It is a document that is subject to interpretation and change

Equal protection may not have included gays in 1920, but it certainly does, now.

The amendment process has never changed.

The second amendment is grounds for endless discussion, however that's for another thread on another day.

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Response to louis c (Original post)

Mon Dec 31, 2012, 06:51 PM

8. i don't think that I'd note it works

When we hit the debt limit, the government is barred from borrowing any more money. It still has to make payments on what it owes. it just won't be able to finance any additional spending by borrowing.

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Response to FreeJoe (Reply #8)

Mon Dec 31, 2012, 07:28 PM

9. The debt ceiling increases are for all past spending.



Revenue is not always consistent. If congress passes spending bills, or has to finance bills passed years ago, and revenue declines, a deficit ensues. That deficit may not be anticipated.

For instance, if the unemployment rate tops 10%, that reduces revenue because fewer people are paying taxes. Yet spending automatically increases, because more individuals are on unemployment and other safety net programs. None of that can be anticipated, yet all those bills must be paid.

After all, it's in the Constitution.

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Response to louis c (Reply #9)

Mon Dec 31, 2012, 08:11 PM

11. That's precisely the point.

If you anticipate income and make a budget based upon it, you expect your family to stay within those limits. Esp. if you say, "This month nobody will incur more than $100 dollars in credit card debt that we can't pay off at the end of the month."

If something interrupts the income, you don't expect your wife or kid or other to say, "But I'm budgeted for this much money. I'm going to spend it, put $400 on the credit card, and you damned will accept the credit card debt because you already said I could."

Except you didn't say so. So there's authorized spending, assuming the revenues hold true. Then there's the credit card, for purchases beyond revenue projections or in the event of a revenue drop off. You want both.

You sort of want a Deist approach to budgeting. Somebody makes the budget and then stands back, unable to say anything about it and really disinterested in what happens because then only the spenders have any real say. It's a nice way of abrogating Congressional authority and making the president's post even more imperial.

As for the rest, "public debt" has a definition, and yours ain't it. It actually has two definitions, and I don't know if the only important Constitutional law experts (viz. SCOTUS) have weighed in as to which definition applies here. Def. 1: Debt issued by the Treasury dept. and held by the public. Def. 2: Debt issued by any branch of government, and held either by the public or by another branch of government.

Important distinction there. But it's still the case that a lot of debts aren't "public debt."

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Response to Igel (Reply #11)

Mon Dec 31, 2012, 08:34 PM

12. But I bet if the budget doesn't balance, you still have to eat

Look, you can not budget for all contingencies. There was a balanced budget until the Repukes cut taxes on the rich and started 2 wars.

We're still paying for that.

The point of this whole post is that it is unconstitutional to place a debt ceiling. The 14th amendment states that you can't even "question" the debt of the United States, never mind not pay it.

The definition of "public debt" isn't one or the other, it's both and both apply here.

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Response to louis c (Reply #12)

Mon Dec 31, 2012, 10:32 PM

17. That is the weirdest reasoning I have ever seen

Budgeted spending is not debt. Borrowing is debt. Only Congress has the authority to borrow under the US Constitution.

Your argument appears to be that authorized spending is implicit authorization of debt, but that argument must fail under all known rules of constitutional interpretation, because Congress has already explicitly said that it is not because Congress has passed the debt limit.

Congress has the power to remove the debt limit, but until it does the idea that any SCOTUS would decide that authorized spending = the power to borrow money is flatly ridiculous. This is a fairly standard separation of powers question, and Congress has traditionally decided separation of powers cases between the executive and the legislative branches by reference to first enumerated powers, and then, when the enumerated powers have any element of shared responsibility, by seeing whether Congress has explicitly ruled on the matter.

In this case, your assumption that the authorization to spend given to the Executive is equivalent to the power to raise revenue by borrowing money fails on the following counts:
The powers discussed are enumerated separately in the Constitution (meaning that they are separate powers),
The powers discussed are all assigned to Congress (the Executive may not spend on its own authority, tax on its own authority, raise revenue on its own authority, or borrow on its own authority)
Congress has passed an explicit limit on the public debt, thus explicitly negating any possible argument that Congress "meant to" authorize the Executive to raise debt if a shortfall in revenue occurred.

By definition, the sole power to borrow must include the power not to borrow, and therefore if Congress passes a law saying that the debt limit is such and such, the Executive cannot possibly go out and borrow money that exceeds that authority. It can do what Treasury will now do - which is move money around among accounts and so forth - to continue authorized spending WITHOUT raising debt It cannot borrow.

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Response to Yo_Mama (Reply #17)

Tue Jan 1, 2013, 08:13 AM

23. Come on

authorized spending, without the corresponding revenue, is debt.

As a matter of fact, that's preciously the reason for Article 4 of the 14th Amendment. The Civil War plunged this country into debt, and this section mandated that all future Congresses honor that debt and any other debts incurred. It bolstered the financial integrity of the war-torn nation in the eyes of the world, and also reassured all of the U.S. citizens who invested in the Union by buying bonds. It also outlawed any claims of the prior confederacy against the Union.

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Response to louis c (Reply #23)

Wed Jan 2, 2013, 01:39 AM

35. No, purchases on credit is debt.

I can authorize all kinds of spending, but until the money's spent there's no debt whatsoever.

And if I'm an employer and tell my employee to spend money that we don't have, he can't sign for a bank loan. He can't spend what's not there. It's delegated authority, and it's limited by a lot of things.

To go back to a poster quite a ways upstream, if authorization to spend also implies authorization to borrow, why doesn't it also imply authorization to tax? They're three separate powers. They can be wielded in arbitrary and unpredictable ways, but that doesn't mean that they suddenly merge.

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Response to Igel (Reply #11)

Mon Dec 31, 2012, 08:39 PM

13. Are you kidding me?


The public debt of the United States isn't really a public debt of the United States?

Guess what? You'll have your answer in less than 3 months, because if the Repukes and the Teabaggers follow the same line of reasoning as you have stated here, the President will follow the Constitution and the SCOTUS will give us an answer.

I'll bet that they don't say that America doesn't have to pay it's bills.

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Response to louis c (Reply #13)

Wed Jan 2, 2013, 01:49 AM

36. Yes, I probably will.

But it's a linguistic problem. You need to define your terms and stick to the definition. You can't let your words shift meaning mid-conversation.

If "public debt" is everything that the government has every obligated itself to, the public debt is probably $90 or $100 trillion. There are all kinds of payments we're on the hook for. Think of this as definition 1.

If it's everything that is on current account (plus the national debt) then it's higher than the national debt. But it also means that all kinds of government employees go around producing this kind of public debt. It sort of makes a mockery of the law, in that suddenly the ability of the government to pay the paperclip bill shall not be questioned. You also have to wonder if Congress really authorized that particular borrowing against the full faith and credit of the United States. They're current accounts. Yeah, it's debt, but "public debt" that's owed for goods and services rendered to a private company? Think of this as definition 2.

Now, the national debt is what, $15.7 trillion or thereabouts? That's the public debt. Let's call this definition 3.

The debt held by the public, though, is rather smaller because some of the "public debt" is held by the Dept. of the Treasury and some by the Social Security Administration. Do you really consider debt that it's illegal for members of the public to own "public"? Let's call the debt actually authorized by Congress, issued by Treasury, and owned by the public "definition 4."

How expansive is the 14th Amendment? Well, it has some examples. All fall in definition 4. It mentions other kinds of things that would fall under definition 2 and 1, but they're not called "public debt." They're "claims" and "obligations."

People want a power grab because, well, they think it's necessary. When it comes down to laws versus imperial decree, they often choose whatever benefits them or theirs the most in the immediate term. It's strictly short-term thinking. That got us the 2008 economic disaster. It gets us a lot of the hyperpartisan wrangling. It's not a good practice. It's no way to run a country.

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Response to Igel (Reply #36)

Wed Jan 2, 2013, 08:05 AM

37. "National Debt" and "Public Debt" are all inclusive

Last night, when President Obama said that the Debt Ceiling Debate is a "debate I refuse to have", what do you think he meant by that?

The debate over the 14th amendment will start soon.

Pick a side.

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Response to louis c (Original post)

Mon Dec 31, 2012, 08:02 PM

10. I think it's a lot simpler than the 14th amendment

Congress has passed two laws.

Law "A" says "Spend this much money on these things".

Law "B" says "Don't borrow more than $X".

You can't comply with "Law A" without violating "Law B". You can't comply with "Law B" without violating "Law A".

When such a contradiction happened in the past, the Executive branch picked one law to enforce, and asked Congress to fix the contradiction.

So Obama can simply say he can't comply with both laws and pick one to follow - obviously he'd ditch the debt limit until Congress either raises the limit, or figures out how to stay under it.

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Response to jeff47 (Reply #10)

Mon Dec 31, 2012, 08:44 PM

14. +1. nt

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Response to louis c (Original post)

Mon Dec 31, 2012, 09:51 PM

15. I think you are quite wrong

Under Section 8 of the Constitution:
http://www.law.cornell.edu/constitution/articlei#section8
"To borrow money on the credit of the United States" is one of the Congressional powers.

Only Congress has the power to borrow money, but it does so by means of the Treasury (Dept of Treasury executes the borrowing Congress has authorized).

Once the money has been borrowed, of course the "full faith and credit" clause comes in - but note Congress has disregarded it before when defaulting on the Liberty bonds.

Because it is Congress which has instituted the debt limit, borrowing money over the current debt limit is by definition outside the power of the Treasury Department. It is true that authorized spending may allow branches of the Executive to go to the Treasury for money raised by issuing debt, but the Treasury does not have the legal authority to raise the authorized debt limit.

Congress can appropriate revenues and spending, but when revenues fall short that doesn't mean that the Executive can borrow, given that Congress has explicitly set a limit (albeit often changing) on the debt limit. Congress doesn't have to set a debt limit, but it certainly has the constitutional power to do so, and when it has done so, no other branch of government has the right to ignore that debt limit.

By definition, if Treasury were to issue debt over the current debt limit it would be a debt NOT "authorized by law", which is what the 14th Amendment covers:
http://www.law.cornell.edu/constitution/amendmentxiv

In any case, as a practical matter, if Treasury were to issue bonds that had the effect of exceeding the legal debt limit, it is likely only the Fed would buy them, because it is probable that at a later date they would be first in line for default due to never having been legally authorized and therefore not subject to the 14th Amendment.

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Response to Yo_Mama (Reply #15)

Tue Jan 1, 2013, 08:05 AM

22. Congress continues to make laws that the Government must pay

The President never makes laws that are appropriations, they all start in the House.

It seems you misunderstand the debt ceiling. It's not increased for future spending, but for past laws. Congress passed an imbalanced budget, and the United States is now responsible for the debts incurred by those PAST appropriations.

The House of Representatives can insist on a balanced budget, and in fact, if the budget ends up spending more than the anticipated revenue, can trigger automatic tax increases (good luck with that one).

What they can't do, according to my interpretation of the 14th amendment, is incur debt then refuse to honor that debt.

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Response to louis c (Reply #22)

Tue Jan 1, 2013, 02:35 PM

30. Why I disagree with your reasoning

You write, "Congress passed an imbalanced budget, and the United States is now responsible for the debts incurred by those PAST appropriations."

But the appropriation itself creates no debts. It means that the executive branch has the authority to go ahead and spend the money, but there is no debt until the executive branch actually spends the money.

It does sometimes happen that a government agency finishes the fiscal year without having spent its entire budget. Consider, at a mundane level, that your local municipal budget, as passed by the City Council, includes $2,000,000 for snow removal, and an unusually mild winter means that only $1,300,000 is spent. There is no public debt for the remaining $700,000. Nobody is owed that money.

That case is easy because there's no occasion to spend the money, and the Mayor's decision not to spend it is perfectly in keeping with the City Council's action. What happens if, instead, the executive disagrees with the legislature about the desirability of the spending? Beginning with Thomas Jefferson, Presidents exercised the power of impoundment, meaning that even though the money was appropriated, the President decided that the expenditure was a bad idea, so he didn't do it.

If that were still the law, the case would be fairly clear. Obama would say, "I have the authority to spend the money but we don't have the money and I'm not allowed to create public debt to finance the spending. I could go ahead with the spending only by issuing 'moral obligation bonds' or some such, that wouldn't be debt authorized by law and wouldn't be binding. (Don't laugh. This has been done at the state level. See here for the basic definition.) As the executive, however, I believe that moral obligation bonds are a bad idea, so I'm going to exercise my impoundment power and not spend the (nonexistent) money." That way there would be no constitutional violation.

What makes it tricky is that the law has changed. Nixon grossly abused the impoundment power, by refusing to spend money on an environmental project, after Congress overrode his veto of the underlying legislation. In response, Congress passed the Impoundment Control Act of 1974, which limited the President's authority. Now the President must get Congressional approval for an impoundment.

The situation is still not clear, however, because "impoundment" has always been interpreted to mean the impoundment of funds that are available. What if Congress directs the spending but no funds are available? If the Congress is ordering the President to do an impossible act, is its appropriation therefore a nullity? Does the passage of the debt ceiling law constitute Congressional approval, under the Impoundment Act, for a rescission of any spending appropriation that can't be covered out of current revenues because the debt ceiling has been reached?

As others have pointed out, this might never get to the Supreme Court because no one would have standing to bring a lawsuit. I don't think that disposes of the question, though. It's a bad idea for Congress and the President to think they can just ignore all Constitutional questions because they'll leave it up to the Supreme Court to resolve them. They all took an oath to uphold the Constitution. It would be irresponsible for the elected officials to conduct themselves in a way that violates the Constitution, even if, as a practical matter, they can get away with it.

Of course, in the hypothetical we're discussing, the irresponsibility would be solely that of Congress -- specifically, of legislators who vote against raising the debt ceiling to cover appropriations they themselves have enacted. If that happens, Obama will be in a difficult position. Any course of action he takes will be vulnerable to a strong argument that he's acted illegally.

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Response to Jim Lane (Reply #30)

Tue Jan 1, 2013, 04:57 PM

31. Congress passes laws that must be obeyed

If they pass a budget (all spending measures originate in the House) the US must pay for it.

Jesus, you really want to count the angels that dance on the head of a pin.

As long as we, the public, incur a debt established by law, we have to pay it.

As a matter of fact, we can't even question it.

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Response to louis c (Reply #31)

Tue Jan 1, 2013, 06:33 PM

32. That answers nothing.

Congress has also passed (and the President has signed) the law that prohibits the federal government from incurring debt above a certain amount.

Your reasoning is: Congress passes laws that must be obeyed. Therefore, the law establishing a debt ceiling must not be obeyed.

I can't respect an argument where its conclusion violates its own first premise.

Am I counting angels? Well, sorry, but this is a complicated question. Any answer that can be reduced to a slogan is probably wrong.

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Response to louis c (Original post)

Mon Dec 31, 2012, 11:02 PM

20. From article 9 of the Constitution...

"No money shall be drawn from the treasury, but in consequence of appropriations made by law"


Even if the president could borrow money on his own authority this passage means he couldn't spend it unless Congress passed an appropriations bill authorizing the spending. The Republicans are being childish here but the reason they can get away with it is because the Constitution is specific about how the government handles its money.

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Response to Redfairen (Reply #20)

Tue Jan 1, 2013, 07:58 AM

21. The debt ceiling is about "appropriations (already) made by law"

The debt ceiling is never about future appropriations, but about laws already promulgated.

Article 9 actually reinforces my point.

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Response to louis c (Original post)

Tue Jan 1, 2013, 08:42 AM

24. Debt Ceiling

I think the analysis should be:
1. Debts include both borrowed money and bills Congress obligated the government to pay such as social security and medicare.

2. There is a separate law authorizing the Treasury to borrow; the debt limit law was added in the early 20th century and has been amended to increase the limit.

3.Congress has passes many specific bills authorizing spending; the debt limit is in conflict with those bills and might be constitutional if it were written so that the executive branch knew which obligations to pay or pay first when the limit were reached. Because the debt limit law does not give clear authority on what not to pay, it is unconstitutionally vague.

There are scholars who are on both sides as has been noted, but I haven't seen this argument made. Professors Dorf and Buchanan comes the closest:

http://www.columbialawreview.org/nullifying-the-debt-ceiling-threat-once-and-for-all-why-the-president-should-embrace-the-least-unconstitutional-option/

4. This is in addition to the 14th amendment and other arguments made.


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Response to buzzroller (Reply #24)

Tue Jan 1, 2013, 10:35 AM

25. Welcome to DU, buzzroller

and a well thought out opinion.

I think this is the next battle in late Feb. or early March.

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Response to louis c (Reply #25)

Tue Jan 1, 2013, 10:44 AM

26. I am hoping to hear this from the Obama administration

in a month or so. And thanks for the welcome. I have been a member for years. I just did not post until recently.

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Response to louis c (Original post)

Tue Jan 1, 2013, 10:47 AM

27. Some questions

Can you bypass this in some way by the Fed showing a "profit" by selling the Treasuries it holds and sending the money to the federal coffers? This would drive up interest rates but would it be a temporary fix.

Can the President use his own form of line item veto by engaging in discretionary spending (ie zeroing out defense contracts in favor of other spending)?

What about using this weapon (cutting spending) to punish specific Congressional districts?



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Response to exboyfil (Reply #27)

Tue Jan 1, 2013, 11:04 AM

28. I think that he should just ignore the debt ceiling

and push it to the SCOTUS for a ruling.

I am confident that he would win that argument, and it's an argument worth having.

After all, there's nothing to lose to force the issue, especially before the debt ceiling actually kicks in.

If I was advising the President, I would tell him that a couple of days after he signs the bill on taxes that's just passed the Senate and is headed to the House, I would ask the SCOTUS to rule on the constitutionality of the debt ceiling, which would be about 6 weeks before it next kicks it. This would avert the crisis and let everyone know exactly where we stand, as a nation, on the issue of whether or not we are obligated, by law, to pay our own bills.

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Response to louis c (Reply #28)

Tue Jan 1, 2013, 11:10 AM

29. Can you get a ruling without standing?

Would you have standing prior to the debt ceiling legislation kicking in?

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Response to louis c (Original post)

Tue Jan 1, 2013, 06:55 PM

33. It's ripe for a challenge, the debt ceiling is.

Seems to me a constitutional professor would be the one to do it. It's always been the Ace in Obama's pocket. Geitner has alluded to it. Obama has refused to discuss it when asked. IOW he refused to show his hand. But, this is a matter of national security as well as looking after the welfare of the citizens. He would have no choice but to ignore the ceiling if it came right down to it.

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Response to DevonRex (Reply #33)

Wed Jan 2, 2013, 12:18 AM

34. The time is now.

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Response to Faryn Balyncd (Reply #34)

Fri Jan 4, 2013, 06:22 PM

38. Get on board, this discussion will be the all the rage in the coming weeks

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