Wednesday, October 9, 2013

Balkinization: Sean Wilentz on the Debt Ceiling Crisis: Imprudent Advice

Constitution of the United States of America, Amendment 14
SECTION 4.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. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
SECTION 5.The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Yale constitutional law professor Jack Balkin explains the practical hazards of President Obama borrowing money even if the debt ceiling is not raised.  In such a case he would rely on the 14th Amendment which provides that the "public debt of the United States shall not be questioned".  Despite this plain command, the wiser course is to demand Congress act.  Balkin explains. - GWC
Balkinization: Sean Wilentz on the Debt Ceiling Crisis: Imprudent Advice:
by Jack Balkin
Sean Wilentz, the historian of the Reconstruction era, in his Times op-ed analogizes "Obama's actions to those of Lincoln in the early days of the Civil War[.]  Wilentz argues that the President could assume emergency powers and save the Union just as Lincoln did: "he could pledge that, if worse came to worst, he would, once a default occurred, use his emergency powers to end it and save the nation and the world from catastrophe." Even if impeached, Obama would "undoubtedly earn[] the gratitude of a relieved people." Here I am not so sure. My view is that the President does not have the unilateral power under Section 4 to disregard the debt ceiling. He needs congressional authorization, because only Congress has the power to borrow money on the credit of the United States (Article I, section 8). As I have explained elsewhere, in the most dire emergency this authorization might even come after the President acts, as it has in the case of military emergencies, but an authorization is still required. Wilentz's op-ed therefore raises four different issues, which he does not adequately address."

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