David Adler: President doesn’t have debt ceiling powers

October 10, 2013 

Various scholars and pundits have asserted that under the 14th Amendment, the president can lift the debt ceiling as a means of saving the economy from catastrophe in the event that Congress opts to plunge the government into default. These claims are misleading, mischievous and contemptuous of constitutional principles.

The assertions are indefensible. They would arbitrarily expand the sweeping powers already possessed by the executive, usurp the constitutional powers and responsibilities of Congress, and further relieve the legislature of accountability to the Constitution and the American people. It is a remedy that rivals the disease.

At issue is the text of the 14th Amendment, which states that “the validity of the public debt of the United States, authorized by law shall not be questioned.” The language, inserted by floor leaders in the 39th Congress, which enacted the amendment in 1866, was to insure the inviolability of the debt, as Republican Senate leader Benjamin F. Wade of Ohio explained, through “the guardianship of the Constitution,” to protect it from “the varying majorities which may arise in Congress.”

But the clear aim of the provision — prohibiting Congress from repudiating the national debt — was directed to Congress, not the president.

To its credit, the Obama administration has consistently denied executive power to raise the debt ceiling.

“The Constitution gives Congress — not the president — the authority to borrow money, and only Congress can increase the debt ceiling,” Jay Carney, the White House press secretary observed. “Congress,” he noted, must “authorize the Treasury to pay the bills that Congress racked up.”

Those who would attribute to the president authority to borrow money ignore the fact that Article 1 of the Constitution vests in Congress the sole and exclusive authority to appropriate funds. There is no unilateral or concurrent grant of constitutional power to the president to allocate funds from the U.S. Treasury.

Oblivious to the mischievous implications for the separation of powers of the prerogative power that they urge, advocates of a presidential spending power invoke as justification the concept of emergency or inherent executive powers.

It is difficult to identify a concept more contemptuous of constitutional principles than the assertion of an amorphous executive “emergency” power.

Justice Robert H. Jackson, in his famous concurring opinion in the 1952 Steel Seizure Case, in which the Court rebuffed the Truman administration’s claim of “inherent emergency powers,” observed that the framers of the Constitution had rejected the concept of a presidential emergency power since they supposed that the possession of such authority “would tend to kindle emergencies.”

Some scholars have tried — in vain — to ground an emergency power in President Lincoln’s actions in the Civil War. Lincoln exceeded his constitutional authority in responding to the emergencies generated by the war, but he sought and received from Congress retroactive authorization for his extra-legal claims. He did not assert executive authority to violate the Constitution.

Attribution to the president of authority to raise the debt ceiling would eviscerate the congressional spending power. The last thing America needs at this moment in its history is further expansion of executive power, already traveling a trajectory of unlimited power, the nether world of constitutionalism.

The concept of a presidential spending power, moreover, would facilitate continued congressional abdication of its constitutional responsibility to make important political, financial and policy decisions about the expenditure of public funds.

It is true that Congress is failing to discharge its duties, but in a republic, the framers believed, authority over legislation, spending and war-making must rest in the legislature, not in the executive, if republican principles are to be preserved.

David Adler is the Cecil D. Andrus professor of public affairs at Boise State University, where he serves as director of the Andrus Center for Public Policy.

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