So, Why Not the 14th Amendment?

The media often cites the phrase from the Constitution that “The validity of the public debt of the United States...shall not be questioned” as the basis for why the nation should not be allowed to default on its debt obligations. That event is expected to occur in a few days, when the Treasury Department says it will have exhausted all accounting maneuvers and will finally run short of money. And if not then, the only compromise on the table would simply push the next debt ceiling imbroglio to Thanksgiving, which will be upon us in an eye-blink.

Those words are found in the 14th Amendment, which was ratified in 1868 a few years after the Civil War. It’s a busy amendment, containing three other sections about citizenship, the apportionment of House representatives, and prohibitions of holding office for those who fought for or aided the Confederacy. Only then do we get to the pledge to honor debts, and even that 4th section has extra language about not paying debts incurred “in aid of insurrection or rebellion”.

That declaration about honoring the public debt may have been prompted by the events of the time but a Constitutional amendment prevails beyond its immediate purpose. It lives on as a requirement of the present government.

Yet to put an end to the rebellion of the moment, President Obama demurs from invoking the 14th amendment as grounds for borrowing the additional money needed to pay the bills that Congress’s spending appropriations have run up. “We do not believe that the 14th Amendment provides that authority to the President”, said Press Secretary Jay Carney. Obama is uncertain that his office can act without the concurrence of the legislative branch.

Sean Wilentz, a professor of history at Princeton, in this recent op-ed in The New York Times recounts how the 14th Amendment came about, then makes the case that the legislature’s participation is not needed. The president should act under his emergency powers, he concludes. And certainly it is an emergency if the United States is poised to bring on the global crisis that officials meeting now in Washington at the annual sessions of the International Monetary Fund and World Bank have said they fear will happen.

But the Constitution grants no emergency powers to the president. These "powers" have simply been assumed to be implicit — by Lincoln, in suspending habeas corpus (struck down by the Maryland district court in Ex Parte Merryman), by Roosevelt with an executive order to confine West Coast Japanese in internment camps after Pearl Harbor, and by Truman to break a steel worker strike during the Korean War (also struck down — by the Supreme Court in Youngstown Sheet & Tube v. Sawyer).

But Congress will be violating the 14th Amendment by preventing the borrowing needed for the U.S. to pay its debts. Only that body has the power of the purse, says the Constitution. The President has sworn to protect and defend the Constitution. For him to do nothing will make him complicit. He should conclude that the 14th Amendment requires him to act. It is odd that this former Constitutional professor does not make this equation.

It is not suggested that the President ignore the debt ceiling law and spend at will. That would run afoul of congressional authority. But he could use the 14th at least to the extent that the U.S. doesn’t default on its prior obligations, obligations resulting from Congress's own appropriation bills.

We can then probably expect that this House of Representatives will initiate impeachment proceedings. But it is the Senate that tries an impeachment indictment and its Democratic majority would bar the door. That would leave it to history to decide who did the right thing.

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