Back in 2013, an obscure constitutional debate about presidential powers and the debt ceiling received considerable attention. But as a new debt deadline nears in a deadlocked Washington, the 14th Amendment could come back in play in late September.
This summer, Treasury Secretary Steven T. Mnuchin told House Speaker Paul Ryan that Congress would need to raise the debt ceiling, the official borrowing limit of the federal government, by September 29 in order for Mnuchin’s department to keep paying its bills and sending out checks. The letter echoed a warning last March from Mnuchin that urged that Congress “protect the full faith and credit of the United States by acting to increase the statutory debt limit as soon as possible.”
The Congressional Budget Office, in its own estimate, believes the debt ceiling could be hit in the first half of October.
The 2013 conflict between the Barack Obama administration and a GOP-controlled Congress was eventually resolved. However, the 2017 situation includes a new President, a divided GOP-controlled Congress and Democrats who will be needed to pass funding measures that include possible legislation over border wall funding that might be connected to debt ceiling approval.
So could President Donald Trump bypass Congress by ignoring debt ceiling and directing the Treasury Department to undertake new borrowing?
The Public Debt Clause is part of Section 4 of the 14th Amendment, and reads in part, “the validity of the public debt of the United States, authorized by law … shall not be questioned.”
Another President, Bill Clinton, brought up the 14th Amendment option in 2011 when then-President Obama and Congress were locked into a fight over the debt ceiling. In an online interview with The National Memo, former President Clinton said Newt Gingrich’s Republican caucus first came up with the 14th Amendment idea during Clinton’s time as President, and Clinton’s team researched the constitutional implications. Clinton said he would use the 14th Amendment “without hesitation, and force the courts to stop me.”
The Obama administration never indicated a willingness to test the constitutional waters. In 2011, President Obama reacted to Clinton’s comments with a widely quoted response: “I have talked to my lawyers. They are not persuaded that that is a winning argument.”
Then in October 2013 at a press conference, President Obama told reporters that resorting to non-congressional solutions to a debt-ceiling crisis could make matters worse. “I know there's been some discussion, for example, about my powers under the 14th Amendment to go ahead and ignore the debt ceiling law,” Obama said. “Setting aside the legal analysis, what matters is -- is that if you start having a situation in which there -- there's legal controversy about the U.S. Treasury's authority to issue debt, the damage will have been done even if that were constitutional, because people wouldn't be sure. It'd be tied up in litigation for a long time. That's going to make people nervous.”
But that didn’t stop the debate at the time. In November 2013, the National Constitution Center hosted three scholars at a Town Hall event on the subject: Sean Wilentz from Princeton University, Ilya Shapiro from the CATO Institute, and Neil H. Buchanan from George Washington Law.
Wilentz pointed to the original intent of the 14th Amendment, when it was debated in Congress after the Civil War. “This is not so difficult for me to parse, which is that any action by Congress, the President or any other official to question the debt, and just not violate the debt, but even questioning the debt is unconstitutional,” Wilentz said. “And any action that would trip off a default is unconstitutional. I don’t think there is much debate about that.”
Shapiro said the exact meaning of “questioning the debt” is ambiguous as best. “For example, anytime that Congress starts spending a lot of money, that could endanger at some future point our ability to pay it back,” Shapiro said. “There is some question of what exactly constitutes an unconstitutional questioning of the debt.”
Buchanan pointed to the Supreme Court’s 1935 Perry decision as “persuasive authority” on the broader subject. “It is the only Supreme Court statement on this issue. It is darn persuasive authority,” he said. Buchanan said the Perry opinion confirmed that the Public Debt clause “was made part of the Constitution,” and that the United States can only default on its debt due to an action by Congress, no matter how much debt is issued.
For now, there isn’t much talk of the 14th Amendment and the debt ceiling yet again in Washington, but with Congress returning after Labor Day, the subject will likely come back again as a public constitutional debate.
Scott Bomboy is the editor in chief of the National Constitution Center.
