The Thursday Outlook: The Debt Ceiling is Constitutional

By Jonathan Larsen

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Thu Jun 30, 2011 11:56 AM EDT

With Pres. Obama's news conference yesterday signaling an impasse on the debt-ceiling talks, a lot of folks are asking whether Democrats can get around the debt ceiling simply by declaring it unconstitutional. Here's the relevant clause, from the 14th Amendment:

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.

Ezra Klein today writes that there's a plausible legal argument that this language supports a finding that the debt ceiling is unconstitutional. And Dave Weigel yesterday, also asked whether the debt ceiling is constitutional. Well, I don't think so.
Here's the tip-off: The article that Weigel links to doesn't question the constitutionality of the debt ceiling. It questions the constitutionality of defaulting. Two different things. The 14th Amendment doesn't prohibit Congress from capping how much money the US can borrow. All it does is prohibit Congress from failing to pay it back. Congress can cap its borrowing and still abide by the 14th Amendment in one of two ways: Stop borrowing, or raise the cap.
It's default that's not an option.

The Wednesday Outlook

By Jonathan Larsen

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Wed Jun 29, 2011 2:18 PM EDT

Pres. Obama today called out Congress for failing to pursue a meaningful jobs plan, for defending big oil and private jets and for blocking measures they once supported because helping the economy might bolster the president's political fortunes. Talking Points Memo has a good writeup showing just how dramatic the GOP reversal has been -- now that the policies they once backed might help the president.
All of this, of course, is coming to a head because Republicans are trying to use the Aug. 2nd deadline for raising the debt ceiling -- in order to make further economy-destroying cuts. And resisting efforts by Democrats to attach economy-boosting spending and/or revenue increases. And today there comes word that Democrats are considering whether they can raise the debt limit without Congress. Why? Because the Constitution prohibits default -- which means Congress shouldn't have the power to cap debt. And yes, I get that this solution -- if it is one -- has the appeal of preventing the Republicans from extorting further measures that damage the economy. But it would put Democrats on the hook all alone for raising the debt ceiling -- and you can bet the GOP will accuse them of doing so illegally, if not unconstitutionally. Republican leaders have already acknowledged that the debt ceiling has to be raised. All that Democrats have to do is say they won't raise it with any new spending cuts attached. Period. Which do Republican leaders fear more -- the fickle, manipulable pique of the Tea Party or the unholy wrath of Wall Street? It seems to me that's a question worth answering