The 14th Amendment has Five Sections

Andrew Rudalevige Jul 24 '11

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.