If Congress doesn’t lift the national debt limit — because President Biden won’t agree to Republican demands to reduce the rate of growth of government spending — can President Biden then invoke the Fourteenth Amendment to keep borrowing money, and then keep spending money on the government programs he wants? Progressive special-interest groups say yes.
No, explains Stanford Law Professor Michael McConnell in the New York Times. As he puts it, “The idea that the 14th Amendment gives the president unilateral power to borrow is dangerous nonsense.” He explains:
Section 4 of the 14th Amendment, enacted in the wake of the Civil War, says: “The validity of the public debt of the United States, authorized by law … shall not be questioned.” The immediate purpose was to prevent future Congresses (if controlled by pro-Confederate Democrats) from repudiating pension obligations and other debts incurred to win the Civil War. No doubt it applies beyond those narrow circumstances. But by its terms it does not authorize the president to borrow more money in violation of Article I, Section 8, Clause 2. Nor does it authorize the president to impose taxes in violation of Article I, Section 8, Clause 1. By its terms, it does not augment the president’s powers one iota.
Nor does Section 4 have anything to do with payment of the national debt. It does not make it unconstitutional for the United States to run out of money. Nice idea, but impossible. Section 4 prevents the only institution of government that could deny the validity of the debt — namely, Congress — from doing so. For the United States to fail to pay interest or principal on its debt would be financially catastrophic, but it would not affect the validity of the debt. When borrowers fail to make payments on lawfully incurred debt, this does not question the validity of those debts; their debts are just as valid as before. The borrowers are just in default.
Moreover, even if the president were to issue new bonds without congressional authorization, the text of Section 4 makes plain that these bonds would not be constitutionally binding. Only public debt “authorized by law” — meaning by statute — has that status. Were Mr. Biden to issue bonds on his unilateral authority, the bond market would know that those bonds were not backed by the full faith and credit of the United States. Sensible investors would not purchase such bonds or would demand such a high risk premium as to make them uneconomical.
This is not the first time McConnell has explained this. Other law professors have explained this, too, such as Jonathan Adler in this post. It’s one of multiple posts he wrote a decade ago about the debt ceiling, the Fourteenth Amendment, the historical understanding of the debt limit, the history of government shutdowns, and platinum coin fantasies.
Congress often extracts concessions from presidents for increases in the debt limit, as explained in this study from three decades ago explaining how “the use of the debt ceiling vote as a vehicle for other legislative matters,” had become a “pattern” in the mid-1970s and 1980s. That subject is also explored in a 2013 Washington Post fact check describing the history of Congress attaching non-budget items to debt ceiling increases.
To avoid agreeing to such demands from Congress, Presidents sometimes allow the debt limit to be reached, forcing a government shutdown. Then, if they think the opposing party will be blamed for the shutdown, they make the shutdown as painful as possible by targeting things people like to be cut off. The media then tends to blame Republicans for the shutdown and the pain that results (even if both political parties caused the shutdown by refusing to compromise, and the president making the shutdown as painful as possible is a Democrat).
Under government shutdowns during the Obama administration, federal agencies closed down, or blocked access to, many private businesses in national parks or on public property that had been allowed to operate in earlier shutdowns under prior Presidents. Meanwhile, Obama allowed politically-connected businesses to remain open). After lawyers and legal commentators suggested that these closures of private businesses were illegal departures from past agency practice, I filed FOIA requests to expose the Obama administration’s strategic use of shutdowns to inflict pain on private citizens. When it refused to turn over relevant documents, I sued the National Park Service and other agencies in the Obama administration to obtain those documents.
The Obama administration’s behavior during a government shutdown was controversial, to say the least. As part of a so-called “shutdown” (which did not actually shut down most of the government – most federal workers kept working), it shut down tourist attractions — even when doing so cost the government more money than leaving them open. It rented costly barricades to keep people out of open-air outdoor monuments that don’t need to be manned, and are typically open even when unstaffed (like the World War II Memorial).
And it sent Park Police to drive people out of privately-run tourist attractions on public land, like the Claude Moore Colonial Farm, endangering tourism-related jobs in the process. PJ Media’s Bryan Preston reported that the federal government was “ordering hundreds of privately run, private funded parks to close,” using the government shutdown as an excuse.
