The Debt Limit Debate and the War Powers Debate (Jack Balkin)

[chill_wind]

The Debt Limit Debate and the War Powers Debate
Thursday, July 07, 2011

JB

In my last post, I compared the problems facing the Administration to two other constitutional struggles, Lincoln's suspension of habeas corpus in 1861 and Truman's seizure of the steel mills in 1952, both involving presidential action in time of war.

In fact, in many respects the constitutional analysis of section 4 of the Fourteenth Amendment is similar to the constitutional debate over war powers. The question in both cases is when the President can act unilaterally without Congressional approval. In the war powers debate, Congress has the power to declare war and raise money for war; in the debt ceiling debate, Congress has the power to appropriate new funds and authorize new borrowing. In both cases we must ask whether the President's action is authorized by Congress (in which case the President's power is at its height), whether it is in defiance of Congress (in which case the President's power is at its "lowest ebb"), or whether it exists in a "twilight zone" where Congress has not clearly spoken (These categories are drawn from Justice Jackson's famous concurrence in Youngstown, the Steel Seizure Case).

Because the structure of the issues in both situations is so similar, we should be very reluctant to give the president unilateral authority to enforce section 4 through issuing new debt in open defiance of Congress unless there is absolutely no other alternative to avoiding financial Armageddon.

more at Balkinization: http://balkin.blogspot.com/