Four Questions For Obama’s 14th Amendment Supporters

Bill Clinton recently revealed that if he were in office now that he would “without hesitation” use the 14th Amendment to justify ignoring the congressional debt limit. He was less clear about whether he thought it was constitutional, claiming that he would force the courts to rule on the issue. Here’s how the former president framed his argument:

“I think the Constitution is clear and I think this idea that the Congress gets to vote twice on whether to pay for [expenditures] it has appropriated is crazy… [Lifting the debt ceiling] is necessary to pay for appropriations already made.”

This idea is the latest mutation of the outbreak of Presidential Gigantism that has afflicted the American left. The vaccine is found in Article 1 of the Constitution.

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow money on the credit of the United States…”

If the decision to add something to the budget in order to “provide for the common defense and general welfare of the United States” automatically includes borrowing money to do it, then why are they separate in the text of the constitution? Why is spending in section 7, but borrowing and taxing in section 8? For that matter why is borrowing separated from taxing power if it’s all automatically included? Why does the text of the Constitution explicitly distinguish between taxes imposed “to pay the Debts and provide for the common Defence and general Welfare”?

Mr. Former President, does it depend on what your definition of “and” is?

The constitutional deliberations handled spending and borrowing as distinct topics. The Federalist papers written to promote ratification also made that distinction. Neither of those facts make any sense if Clinton is right and spending and borrowing and taxing all amount to one congressional power.

Appropriations and borrowing are separate powers, require separate votes, and the reason no president before asserted that he had the right to borrow as much as he wanted against the explicit legal limit of congress is because both powers, appropriations and borrowing, are explicitly given to the Congress, not to the president.

Why not use asset sales to service the nation’s debt?

When developing countries run into debt crises, we in the developed world advise them, sometimes directly and sometimes through international agencies such as the IMF, to sell assets. Now that we’re acting like a developing country why don’t we follow our own advice?

It’s hard enough to argue with a straight face that the Constitution not only requires us to pay our debts (which it does), but that it further compels us to pay old debts with new debts. It’s even harder to argue that point when we are sitting on trillions of dollars in assets.

Bruce Bartlett suggests a complex and deceitful financial transaction in which the Treasury department “sells” its $300 billion gold reserve to the Fed for a specified period of time to raise money, with the understanding that when the debt ceiling is raised, the Treasury will buy it back from the Fed. How is this not a loan from the Fed the Treasury? If it’s a loan it violates the debt ceiling law. But hey, it reminds us all that the government is sitting on $300 billion in gold. Forget the Enron-type non-debt-but-really-debt transaction — just sell the Gold!

Do we really need to be gold and oil investors? Which reminds me, what about the roughly one trillion dollars worth of oil we have in reserve? Instead of using it to manipulate energy prices, why don’t we just get out of the oil storage business and use the proceeds to service the debt for a couple of years?

There is a huge, unspoken and inaccurate assumption behind the 14er case, namely that the constitutional mandate to pay our debts implies doing it with additional debt.  Yes, the Constitution says we have to pay it. But the Constitution does not say to pay it with further borrowing. It leaves the decision whether to use further borrowing, cost-cutting or new taxes to pay it clearly in the hands of the legislative branch.

If the 14th Amendment transfers debt power from the congress to the president, then why doesn’t it mention the president, and why does it explicitly mention congress?

The locus classicus of Congressional jurisdiction over public debt is in Article 1, Section 8.  But is that jurisdiction rescinded in the 14th Amendment? No way. In fact it is even reiterated in the 14th Amendment – twice! If the presidential sycophants had bothered to read the section immediately following the section which they have been quoting, they would have seen this:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

Obama’s knee-pad brigade never seems to quote that section. But even the section which they do quote makes the same point clear.

“The validity of the public debt of the United States, authorized by law…shall not be questioned.”

In other words, the only debt protected by the 14th Amendment is the debt authorized by law, that is by the legislative branch.

If the framers of the 14th amendment somehow meant it to transfer borrowing authority from Congress to the President, why didn’t they say so in the ratification debates?

We have extensive records of the framing of the 13th and 14th Amendments (Raoul Berger’s book Government by Judiciary is the best treatment). But neither advocates of the amendment, nor opponents, said anything about a transfer of borrowing power to the executive branch. Given the fact that there was a very great concern about the growth of executive powers, especially among the confederates, the lack of evidence of any objections along these lines is very conspicuous.

If the framers of the 14th Amendment intended to amend Article 1, which gave that power to the congress, why did they not in the official text of the Constitution show it as an amendment to article 1?

The official text of the constitution notes the places in which amendments to the original text supersede it.  For example, the 13th Amendment abolishes slavery and the framers of that amendment went back to the sections that were amended and inserted parenthetical notices of the change.

They did so with all of the other sections of the 13th and 14th amendments, adding parenthetical statements to whichever earlier section of the constitution was being amended, but they made no such change to the Article 1 borrowing powers of the Congress. The reason they did not change the text is because they did not change the powers.

If the framers of the 14th amendment intended for it to imply further borrowing to pay the debt service, than why did they do the opposite in their own budgeting process?

The civil war deficits were proportionately roughly the same as ours are now, but instead of further borrowing, they cut spending drastically. Are the Huffington and Washington Posts better interpreters of this amendment than the men and women who wrote it? That generation dealt with a deficit which was roughly 10% of GDP, the same as ours.

But they dealt with the problem through extensive cost cutting, not through credit expansion. If we believe that they understood the intent of the law which they wrote better than we do, then we cannot seriously argue that they thought the 14th amendment specifically mandated debt expansion rather than other means such as cost reduction to deal with excessive debt.

The 14th amendment has been so horribly abused by Clinton, Bartlett and Company that one is tempted to visit the local magistrate and file for a PFA on behalf of the abused section. Justification? A history of textual violence. If the liberal establishment continues to promote this line of reasoning, and, God forbid, the Obama administration acts on it, the promulgators will be exposed for what they are: worshippers of power, abusers of liberty, oppressors of future generations.

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Mr. Bowyer is the author of “The Free Market Capitalists Survival Guide,” published by HarperCollins, and a columnist for Forbes.com.