Tuesday, December 11, 2012

NRO: President Does Not Have Constitutional Authority to Go Solo on the "Debt Ceiling"


View from the legacy old-school political right at NRO.  Excerpt:
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.
The story goes on to point out that the Administration and it's legal team came to the same legal opinion last year on the same issue:
Even President Obama has acknowledged the problems with this proposal. Last year, at a town-hall meeting in College Park, Md., he said:
Now, the gentleman asked about the 14th Amendment. There’s a provision in our Constitution that speaks to making sure that the United States meets its obligations. And there have been some suggestions that a president could use that language to basically ignore this debt-ceiling rule, which is a statutory rule. It’s not a constitutional rule. I have talked to my lawyers. They do not — they are not persuaded that that is a winning argument. So the challenge for me is to make sure that we do not default, but to do so in a way that is as balanced as possible and gets us at least a down payment on solving this problem. Some highly regarded liberal law professors such as Laurence Tribe and Erwin Chemerinsky have also opined that the president could not raise the debt ceiling without congressional approval.

1 comment:

Mike Norman said...

Obama's timid in this regard. Last year, when Clinton said he would invoke the 14th Ammendment and "let the courts figure out" whether or not it was legal, I believe he would have carried through on that. Obama, on the other hand, probably finds a gov't shutdown to be much more straightforward and manageable.