Tuesday, December 11, 2012

The Oncoming Constitutional Storm

The next debt ceiling vote should be interesting indeed. If Republicans have any cajones at all, they are going to demand real spending reductions from Obama and the left as a prerequisite to raising the debt ceiling. And if they hold firm, Obama will no doubt claim authority under the 14th Amendment to unilaterally raise the debt ceiling. It will be a Constitutional storm.

My suggestion for Republicans at the next debt ceiling talks, after giving Obama all of the tax increases he wants, would be to demand a plan that will reduce the budget deficit by 25%, about $4 trillion, by the end of Obama's term. Obama had previously promised to cut the deficit in half by the end of his first term - that would have been about $5 trillion - and indeed, he has called the accumulation of debt unpatriotic. It is time for the right to hold the line on spending by the left. That is the cliff we need to dive over.

So does Obama have the authority to unilaterally raise the debt ceiling? Short answer - hell no. Long answer:

Art. 1, Sec. 8 of the Constitution rests sole authority for our government to borrow money in the Congress. Specifically:

The Congress shall have Power To . . . borrow money on the credit of the United States.

And indeed, Congressional approval of a debt ceiling increase is required by law at 31 U.S.C. § 3101 and 3101A. All of that said, the people urging Obama to ignore these crystal clear provisions claim that the President has the authority, under the 14th Amendment, to raise the debt ceiling unilaterally. Specifically, they cite to the 14th Amendment's Public Debt clause:

The validity of the public debt of the United States, authorized by law . . . shall not be questioned.

That provision was meant to keep Congress from unilaterally discharging our nation's debts in a sort of pseudo bankruptcy. It does not apply to debts not yet incurred, and indeed, our government takes in more than enough money each month to cover existing debt. As John Malcom at NRO explains:

The president’s defenders argue that if Congress fails to raise the debt ceiling, the United States will immediately start defaulting on its debts, an outcome that the Public Debt Clause deems impermissible. To avoid default, they contend, President Obama could raise the debt ceiling without congressional approval. But this argument is dead wrong.

When the 14th Amendment was passed, Senator Benjamin “Bluff” Wade of Ohio, a proponent, set forth the rationale: “I believe that to do this will give great confidence to capitalists and will be of incalculable pecuniary benefit to the United States, for I have no doubt that every man who has property in the public funds will feel safer when he sees that the national debt is withdrawn from the power of a Congress to repudiate it and placed under the guardianship of the Constitution.”

In 1935, in Perry v. United States, the Supreme Court observed that the Public Debt Clause confirmed the “fundamental principle” that Congress may not “alter or destroy” debts already incurred. However, even if Congress refuses to raise the debt ceiling and additional borrowing is curtailed, the federal government’s revenues are more than enough to satisfy current debt payments and enable it to avoid a default.

Meanwhile, the Constitution clearly provides that borrowing money requires congressional action. In Article I, Section 8, Congress is granted the power “to borrow money on the credit of the United States.” As Andrew Grossman of the Heritage Foundation has explained, the power of the purse — including the authority to tax, spend, and borrow — is clearly legislative, according to the Constitution. Nothing in the Public Debt Clause takes this power away from Congress and assigns it to the president.

President Obama has no more unilateral power to issue new debt on the credit of the United States than he has to unilaterally raise taxes, sell off government assets, or make expenditures that have not been enacted by Congress.

Moreover, the Public Debt Clause refers to public debt that has been “authorized by law.” The debt ceiling is established by statute (31 U.S.C. 3101 and 3101A). If President Obama were to issue an executive order purporting to enable the federal government to borrow more money, thereby incurring public debt in excess of the statutory debt limit, any debt so incurred would not be “authorized by law.” It would, in fact, be contrary to law.

Obama has been running the U.S. as a tyranny, bypassing Congress and assuming powers clearly not authorized by the Constitution. Eric Cantor gives a great roll-up of the examples in his essay, The Imperial Presidency and I have complained bitterly about several aspects of this in a post here. The final straw will be if Obama attempts to claim unilateral power to raise the debt ceiling. This will be a Constitutional crisis. House Republicans should shut down the government if he attempts to do this. And in a rational world, this would be the basis for impeachment.


Ex-Dissident said...

Would it be racist?

GW said...

Heh. Well, the Constitution was drafted by old white men, so I guess demanding that we follow it . . .