July 31, 2011

The 14th Amendment and the debt ceiling

By The 14th Amendment and the debt ceiling

Author:  Damien M. Schiff

Former President Bill Clinton recently caused something of a stir by his public suggestion that President Obama could unilaterally increase the debt ceiling by invoking the authority of Section 4 of the 14th Amendment.  That provision of the Amendment states:  "The validity of the public debt of the United States, authorized by law, including debts incurred for payments of pensions and bounties for services in suppressing insurrection or rebellion shall not be questioned."

Legal scholars are mixed on whether Section 4 is a time-bound provision intended to avoid a Southern repudiation of Union Civil War debts and nothing else, or whether the provision means, as Professor Jack Balkin suggests, that the national debt cannot be used as a pawn in some larger political game.

But most academics appear to agree that, should Section 4 be invoked, no court would entertain a lawsuit to challenge the President's action.  Such a lawsuit would likely be precluded by the doctrines of standing or political question (which we've covered previously).

Whether Section 4 would apply today depends largely on one's theory of interpretation.  Does one take the meaning of the words of the Constitutional text as understood when enacted?  As understood today?  Does one cabin an otherwise broad provision by limiting it to the historical milieu from which it emerged?  Or is what matters the rule itself, divorced from the problems that necessitated its adoption?

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