The 14th Amendment has Five Sections

The potential intersection of the 14th amendment with the debt ceiling crisis has been given new life in recent days. Former President Bill Clinton has added his voice to those of several legal scholars in claiming that President Obama could simply continue to pay American debts, even as they rose above the statutory debt ceiling. Adam Liptak summarizes the debate on the New York Times site today.

The reference in question is from Section 4 of the amendment, which was adopted in 1868 and is much better known for its relevance to citizenship (of the US, versus state citizenship), equal protection of the laws and, ultimately, its use as a vehicle to constrain state laws with the protections of the Bill of Rights.

Section 4 states that “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.”  The context is, of course, the Civil War—and the fear that given the chance, southern politicians back in federal office would refuse to re-pay debts incurred in winning the Civil War.  The text itself, though, as the Supreme Court held in the 1935 case Perry v U.S., can stand alone.

There are many arguments out there about whether Section 4 can be invoked unilaterally by the president to override the debt limit and protect the full faith and credit of the US.  Yet hardly any of them – one early exception is Matt Dickinson’s blog, here – notice that the 14th Amendment is made up of five sections, not four.

Section 5 states: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

The debt limit statute itself is, presumably, such “appropriate legislation,” entirely consistent with Article I’s assignment of the power of the purse to Congress. Given the shift in the 20th century from legislative approval of individual debt issues to broader delegation of that authority to executive branch actors, a check on the scope of that delegation is reasonable enough. Perhaps the passage of a budget de facto requiring the issuance of debt that exceeds the limit is another, competing, piece of “appropriate legislation.” Even if so, the “solution” would presumably not extend past the new fiscal year in October.

Thus the question shifts from the legal to the political very quickly. Would and could courts enforce the law?  Would impeachment ensue instead?  And, most crucially, do Congress’s (still only potential) failings in this area constitute an emergency that necessitates presidential action in violation of the law, in Lincolnesque fashion?  It is up to Congress to prevent these questions from becoming more timely.

6 Responses to The 14th Amendment has Five Sections

  1. Portisque July 24, 2011 at 7:04 pm #

    Well, it does say Congress shall have the power, but does that “shall,” indicate that it alone must have it? And if Congress abrogates that power by it’s failure to act, is the executive barred from enforcing it?

  2. Dave July 25, 2011 at 12:52 am #

    Even if the 14th Amendment were at play in the current situation, does it expand the power of the president, allowing him to lift the debt ceiling unilaterally, or constrain the president’s choices in a default, forcing him to first pay creditors at the expense of everything else that will have to be cut due to the debt ceiling.

  3. Hamiltonian July 26, 2011 at 1:10 am #

    The 5th section can’t mean that in the absence of due legislation making good on the 4th section, the President has no power to enforce the 4th. If it did mean that, Congress would have the power to unilaterally nullify the constitution by failing to enact the requisite laws.

  4. Dan Nexon July 26, 2011 at 1:32 am #

    I seem to recall that SCOTUS has been less than willing to grant Congress full section 5 powers on enforcement of section 1, hence the interstate commerce justification for 1960s civil rights legislation…

  5. Tracy Lightcap July 26, 2011 at 11:36 am #

    Yes. Obviously, appropriate legislation does not include legislation that renders part of the amendment a dead letter. Such would be unconstitutional on its face.

    Few seem to think, however, that Perry provides the president the power to simply create future debt to pay incoming bills. But, of course, that doesn’t need to bother the President. All he needs to do – and at this stage I wouldn’t put it past him – is to go on national television, say that Congress can’t pass a debt ceiling bill, but, as Brad DeLong points out, has passed continuing resolutions that create obligations that Section 4 says have to be honored and report that he has ordered Treasury to write the debt. The House might try to impeach him, true, but this would fail completely. Going to court would happen, but it’s a question how fast the case could be tracked (not very, I’m guessing). Iow, Obama’s FDR moment would have arrived (does anybody doubt that Roosevelt would have done this?) Query: will the President do take this course?

    I don’t know. He’s a constitutional lawyer and that works against this choice. Oth, he’s also a Chicago pol and used to sharp elbows. We’ll see soon enough.

  6. Andrew Rudalevige July 26, 2011 at 1:19 pm #

    Tracy Lightcap returns the question to the correct place, I think: to the political, really, not the legal. Could the president “get away with it” in the sense that (a) the courts might decide no one had standing to sue him; (b) the courts might decide instead that this is a non-justiciable “political question”; (c) even if House impeachment succeeded (it could) the Senate would not convict, and anyway (d) any of these would take a long time, and we’d be past the crisis. Sort of the War Powers model: finish the war within 60 days and the WPR is not an issue. I don’t think this track (in budgeting or war) is healthy for the polity, but of course neither is default.

    I want to complicate some of the comments above, though, with a query – is it the debt limit statute itself that should be read to (potentially) violate Section 4? Any debt up to that limit is as inviolable as you please. Isn’t it the laws that create spending obligations without paying for them, thus incurring new debts, that cause the problem? From the perspective of unilateral enforcement, impoundment would be an equally logical solution. But when the president has acted unilaterally to halt the spending of congressional appropriations before – most notably in the impoundment battles of the 1970s – the Supreme Court shot this down (see Train v City of New York). Not sure if this just brings us back to where we started, but I wonder if it does complicate Obama’s constitutional query. In any case let’s hope, as Bruce Springsteen put it, we can “look back on this/ and it will all seem funny.”