With negotiations to raise the debt ceiling taking water, many are asking the critical question: Is the debt ceiling unconstitutional under the Fourteenth Amendment. That Amendment, at section 4, reads:
“The validity of the public debt of the United States, authorized by law,…shall not be questioned.”
Since the current debt, and increases to it, are the result of expenditures authorized by law, the argument is that it cannot be questioned, and must be paid. In that context, the debt ceiling would itself be unconstitutional as would any attempt to negotiate a debt ceiling increase.
The argument is picking up steam among Democratic senators including Chris Coons (D-DE) and Patty Murray (D-WA). The theory being advanced is that the president, likely based on an Attorney General’s opinion, could declare the debt ceiling unconstitutional and continue to pay the nation’s debts under the authority of the Fourteenth Amendment.
Debt ceiling constitutionality has been raised before by constitutional experts, but the idea has previously failed to enter mainstream thinking. That is now changing as the impact of debt default confronts the nation in the wake of attempts to use the debt ceiling to extract ransom on future tax and spending issues. The idea of declaring the debt ceiling unconstitutional is not limited to just a few Washington, D. C. partisans, but is also beginning to be discussed in the media. See: WaPo, HuffPo and Business Insider.
The White House is referring questions on the subject to the Treasury Department. The Treasury Department is not responding to inquiries. One interpretation might be that Treasury is looking at the idea as a last ditch approach but does not yet want to take a public position.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.