The news for the last month has been dominated by the ongoing standoff between President Obama and House Republicans over the debt ceiling increase. This clash of wills and of visions has highlighted the nation’s dire financial situation and the economic perils to which it exposes us. It has also revealed another less obvious but no less important problem: the ongoing and widespread temptation to politicize the Constitution.
In the present conflict, this temptation has been most powerfully felt by, and has most successfully coaxed to action, the American left. In recent weeks, liberal legal and political commentators have claimed that, should Congress fail to raise the debt ceiling, the President, in order to prevent default, would be constitutionally authorized to incur new debt on behalf of the United States. Defenders of this idea pointed to the Fourteenth Amendment, which states that the “validity of the public debt of the United States, authorized by law . . . shall not be questioned.” This language, however, cannot plausibly justify the power some have claimed for the President.
The Amendment speaks of debt “authorized by law,” thus creating a heavy presumption that in our system of government, public debt can be incurred only by an act of the legislative power. This, indeed, is the explicit sense of the Constitution in Article I, Section 8, which provides that Congress “shall have the power . . . to borrow money on the credit of the United States.” On a plausible reading, the Fourteenth Amendment provides that the debt of the United States may not be repudiated. That only means, however, that should the government fail to make good its obligations, its creditors could take their grievance to the Courts to get their claims lawfully enforced. The Amendment says nothing in general about how the monies to pay the debt should be raised, and it certainly is completely silent on any executive power to raise such monies. It therefore contains nothing to modify or repeal the express provisions elsewhere in the Constitution that only Congress has such an authority.
Indeed, Article I, Section 8 of the Constitution gives Congress not only the power to borrow money on the credit of the United States, but also the power to “lay and collect taxes, duties, imposts, and excises, to pay the debts” of the United States. Therefore, if the interpretation advocated by the President’s partisans in the present dispute were correct, it would equally prove that the President, to avert default, could impose new taxes. Surely this implication is sufficient to bring to light the radically unconstitutional nature of the presidential power that is being suggested. Indeed, if the President may issue debt to prevent default when Congress will not raise the debt ceiling, then there is nothing to prevent him from vetoing whatever debt ceiling increase Congress might enact and then raising the revenues on his own authority and spending them according to his own discretion. To affirm the power of the President to issue debt would be indistinguishable from denying Congress the power of the purse, and would accordingly constitute a giant leap in the direction of one-man rule of our nation’s finances.
It is also worth noting that this expedient, which is presented as a way of preserving the credit of the United States and preventing the evils that would arise from a default, would, in all likelihood, do the reverse. Those who defend the idea note that even a temporary default on the nation’s debt payments would drive up rates of interest and make the public debt even more crushing. Continued borrowing will be necessary for the short and even mid-term, and new lenders would, in light of such a default, demand greater compensation for the now much greater risk of a future default. This analysis is correct, but the issuance of executive-authorized debt would do nothing to address it helpfully. The worst thing you could say about debt incurred on the authority of the President alone is that it is absolutely invalid and therefore not worth the paper on which it is printed. On the other hand, it is possible that the courts, in the end, might uphold the validity of such debt despite its obvious constitutional infirmity. It is possible, but not certain. Accordingly, the best thing you could say about executive-authorized debt is that its value is highly questionable and that it might never be repaid. In view of these circumstances, which will be evident to anyone in a position to lend to the government, executive-authorized bonds would have to command a very high rate of interest to compensate for the real possibility that they would never be repaid, and the near-certainty that if they were repaid, it would be only after a costly and uncertain process of litigation—one in which the Congress of the United States might be contending against their validity.
Unfortunately, in the debt ceiling controversy, the American right has also succumbed to the impulse to politicize constitutional interpretation, although not as brazenly as has the left. In response to the above interpretation, some conservatives have claimed that the Fourteenth Amendment does not create any executive authority but that it instead limits it, that it in fact requires what President Obama and his supporters surely do not want: namely, it requires the President, faced with insufficient revenue because of Congress’s refusal to raise the debt ceiling, to use present tax revenues to service the existing debt before paying for any other government programs. This interpretation was advanced, for example, by Republican Senator Mike Lee of Utah.
This, too, is an overreaching interpretation. The language of the Fourteenth Amendment, read impartially, does not really constrain executive discretion in this manner. Again, the pertinent passage holds that the “validity of the public debt of the United States, authorized by law . . . shall not be questioned.” This passage certainly means that the public debt cannot be repudiated by the government of the United States, but it does not prescribe any specific course of conduct for a president confronted with government revenues unequal to government commitments. A president in that situation would find himself with insufficient resources to meet all legislatively authorized objects; in the absence of legislation specifically constraining his choices, he would be free to use his own discretion as to which public obligations should be paid for first and which should, temporarily, at least, go unpaid. He might well decide to pay for other government programs before paying on the debt service. The exercise of such discretion would in no way deny or question the “validity” of America’s public debt. It would merely represent a temporary concession to a real and insuperable necessity: the absence of revenues with which to meet all the obligations Congress has authorized.
This is not to deny that there are powerful prudential and moral reasons to treat the public debt as having a claim on revenues prior to that of any other governmental obligations. After all, by damaging the nation’s credit, missed debt payments will likely do more harm to the national interest than, say, postponed expenditures for authorized programs, or even delayed social security checks. Also, the moral obligation to pay the public creditors is more pressing, because the government’s relationship to them is contractual. That is, it has promised to pay them back on a certain schedule, while other government programs represent more of a decision to execute a certain policy than a promise to specific individuals. Nevertheless, these prudential and moral considerations cannot be understood to impose a constitutional constraint on the discretion of a president faced with inadequate revenues. After all, one can easily conceive some public needs—such as defense or intelligence—that a prudent president might place even before paying the nation’s creditors. And once we concede this much discretion, there is no credible constitutional principle on which to limit that discretion at all.
Such politicization of constitutional interpretation, whether of the left or the right, threatens deep harm to our way of life as a nation committed to constitutional government. The point of the Constitution is to foster energetic but moderate government that can secure the common good while protecting fundamental liberties. It can only achieve that worthy end, however, if its provisions have a stable meaning that is largely immune to political perversion. Put more simply, the Constitution is meant to establish the rule of law, but there can be no rule of law in any meaningful sense when the fundamental law is routinely subjected to implausible interpretations that are pressed for the sake of temporary political advantage.
Resisting the politicization of the Constitution also has a bearing on our nation’s financial and economic fortunes. The credit of the United States reached its unsurpassed quality not only because the government has reliably paid its debts, but also because it has a system of laws, including the fundamental law of the Constitution, that renders the government’s behavior more regular and predictable than that of most other nations in the world. When we bend the Constitution to passing political purposes, however, we introduce an element of anti-constitutional banana-republicanism into what is meant to be a government of constitutionally delegated and distributed powers. We thus strike deeply at our reputation as a nation of laws, and that reputation is no less essential to its credit than its record of repaying its debts. Consider this in relation to the liberal claim that the Fourteenth Amendment authorizes the President to issue debt. By attempting to do so, he might succeed in temporarily making certain immediately pressing debt payments, but he would at the same time render the general principle of debt-repayment questionable. After all, if one can ignore a constitutional provision as clear as that which empowers only Congress to borrow money on the nation’s credit, one could just as easily ignore the Fourteenth Amendment’s provision that the validity of the nation’s debt shall not be questioned.
The temptation to politicize the Constitution is understandable. Everyone who is seriously engaged in politics passionately wishes for his side to prevail, and so deeply desires to impress the Constitution into the service of his cause. Nevertheless, for the sake of maintaining a free and prosperous polity under the rule of law, this temptation should be resisted with a resolution more than equal to it.