Unconstitutional for Obama to Raise Debt Ceiling Without Congress

President Barack Obama, we have been told many times, is a constitutional scholar. His administration’s latest plan for dealing with the debt ceiling is, therefore, an occasion for him to have his credentials reviewed.

According to Treasury Secretary Timothy Geithner, who, one presumes, is speaking for Obama, the public debt clause of the 14th Amendment to the U.S. Constitution gives the president the authority to deal with the approaching debt ceiling by ignoring it.

[See a slide show of 6 consequences if the debt ceiling isn't raised.]

Here’s what the amendment actually says:

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. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

To Obama’s allies, the idea that it is unconstitutional for the nation to default on its publicly held debt means the president can ignore the debt ceiling while continuing to borrow more money—without the approval of Congress—in order to keep paying off past loans.

Obama, wrote Katrina vanden Heuvel in Wednesday’s Washington Post, should adopt “a plain reading” of the amendment “to conclude—statutory debt ceiling or not—that he is constitutionally required to order the Treasury to continue paying America’s bills.” [Slide Show: 6 Ways to Raise the Debt Ceiling]

“In that sense, this is not just a constitutional option, it is a constitutional obligation,” vanden Heuvel, the wealthy socialite who edits and publishes the leftwing Nation magazine, continued, “one even the Tea Party will have trouble denying.”

The Tea Party may feel otherwise. In the days since Geithner first floated this trial balloon, the idea that Obama can act unilaterally to head off the debt ceiling crisis by continuing to borrow money has been debunked by an array of constitutional scholars and conservative organizations—which reject the notion implicit in Geithner’s reading of the amendment that the debt ceiling is itself unconstitutional. [Check out cartoons on the national budget and deficit.]

“For Congress to limit the amount of the debt does not ‘question’ the ‘validity’ of the debt that has been ‘authorized by law,’” former federal Judge Michael McConnell wrote Monday. “At most, it means that paying the public debts and pension obligations of the United States, as they become due, has priority over all other spending.” Contrary to what those like vanden Heuvel assert, the public debt clause “does not create a back-door method for the Administration to borrow more money without congressional authorization” said McConnell, now the director of the Constitutional Law Center at Stanford University Law School.

A “plain reading” of the amendment, as vanden Heuvel urges, indicates clearly that it applies only to debts already incurred, not the preservation of the ability to borrow more money—which is not the only course of action available to keep the government underneath the debt ceiling.

“Default,” Americans for Limited Government President Bill Wilson wrote Thursday in the Washington Examiner, “is a political choice. Money still flows to the Treasury every day. As interest payments came due, the money would be there to pay them. As old debt was retired, new debt could be issued up to the current limit.” [See editorial cartoons on Obama.]

“There is no legal right or claim of the president to overturn Article I, Section 7 of the Constitution,” Wilson continued, “which gives the House of Representatives the sole power to originate ‘the raising of revenue.’ And let's be clear, adding new debt is new revenue.”

It is clear that the president’s intention has, from the beginning, been to use the approach of the debt limit to force Congress to agree to a tax increase--a political calculation that has backfired badly. Obama is now faced with the very real possibility that, for the first time, the nation will default. If it does, he will have no one to blame but himself.

• Vote now: Will there be a debt ceiling deal?
• Slide Show: 6 Consequences if the Debt Ceiling Isn't Raised
• Slide Show: 6 Ways to Raise the Debt Ceiling