Is the Debt Ceiling Law Constitutional?

The Way to Solve the Debt Ceiling Problem – Ignore It

[Disclosure Alert:  The Dismal Political Economist is not now nor has he ever been a Constitutional Lawyer.  He has not attended classes in Constitutional Law.  He has not attended Law School.  He has not even walked past a Law School]

[Additional Disclosure:  The Facts stated above in no way disqualify The Dismal Political Economist from opining on Constitutional Law.]

If one can believe the Secretary of the Treasury, last week the United States reached the limit of its statutory debt as defined and limited by the statutory debt ceiling.  Under procedures neither known nor understood, the U. S. Treasury can continue borrowing despite this limitation until August.  At that time the U. S. will no longer have the statutory authority to borrow money and as a result will engage in a technical default of its debt obligations unless the U. S. Congress raises the debt ceiling between now and then.

At that time the President will face two choices.

1. Accept a default by the U. S. on its debt and the attendant expected chaos in world financial markets.

2. Accept an increase in the debt ceiling accompanied by severe spending cuts that would decimate Federal programs aimed at helping the poor, the sick, the elderly, the young and the disabled.

The Dismal Political Economist believes there is a third option.  The President should declare that under the 14^th amendment to the Constitution, this part here

Section 4.

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.

the debt ceiling law is unconstitutional in that it prevents the government and the President  from performing their Constitutional duties.  The Treasury would then go ahead and issue new debt and the issue would be settled.

Well, actually it would not be settled.  The Congress, particularly the Republicans would be outraged and demand adherence to the Rule of Law. Mr. Obama could calmly point out that he was merely doing what Mr. Bush and other Presidents have done in issuing Signing Statements that they were not bound by laws that they considered Unconstitutional.  He could further say to the Congress, “Don’t like it, sue me”.

The fate of such a suit in Federal Court is unknown.  The courts have been highly reluctant to get into disputes between the Executive and Legislative branches, and the question of standing would come into play.  The Supreme Court might be very hesitant to even accept the case, unless the Conservative bloc felt that an outcome based ruling was more important than precedent (see Bush v. Gore). In any event, the issue would be off the table until after the 2012 election.

Yes, this would be a difficult step for the President to take, but it would be bold, decisive and probably admired by even those who would disagree.  It is what the Man Who Shot Liberty Valance Osama Bin Laden would do.