Reader's View: President does not have power to raise debt ceiling

Special to The Idaho StatesmanOctober 28, 2013 

On Oct. 11, David Adler of Boise State University opined on President Obama’s purported authority to lift the U.S. debt ceiling. Mr. Adler erred in his argument about the 14th Amendment to the U.S. Constitution.

Mr. Adler is correct that the issue involves the text of the 14th amendment, but he misquoted Section 4 of that amendment, which very likely led to his error. After his misquote he states, “(t)he clear purpose of the provision — prohibiting Congress from repudiating the national debt — was directed to Congress, not the president.” This is incorrect.

The 13th, 14th, and 15th amendments to the U.S. Constitution were ratified by the states in 1865, 1868 and 1870, respectively. In Thomas Cooley’s 1875 update of Joseph Story’s 1833 “Commentaries on the Constitution of the United States,” Cooley explains these amendments were to bring the defeated states of the confederacy under the prevailing federal authority.

The first section protects United States citizens against state power. It targeted the formerly rebellious southern States, certainly not Congress.

The second section of the 14th Amendment alters the second section of Article 1 related to the election to the House of Representatives. This relates to individual state power, not congressional power.

The third section of the 14th Amendment disabled persons from holding offices if they had sworn an oath to support the Constitution, but after taking that oath had “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” It specifically disables southern rebels from holding public office.

Mr. Cooley states Section 4 had “for its chief object to protect the credit of the nation, first, by affirming the unquestionable character of the national indebtedness, and second, by precluding the assumption by the nation of obligations (related to the Civil War) with which it could not with any justice be burdened.”

Mr. Adler is incorrect that this provision was directed at Congress so it would not repudiate the national debt. It barred the federal government from enacting a law to pay certain debt, and barred any state from paying debt related to the late rebellion, unless it was related to its suppression. It barred the United States from paying certain debt, not repudiating it.

This is proven by a full quote: “(t)he 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.”

One can imagine how important these provisions were in 1868. Section 4 of the 14th Amendment was not directed at Congress, it was to control the defeated States.

The best way to see its purpose clearly is to review the express language of the second clause of Section 4, which states, “authorized by law.” For public debt to be authorized by law, a bill must be enacted pursuant to the second paragraph of section 7 of Article 1 of the U.S. Constitution. President Obama cannot by executive fiat unilaterally lift the U.S. debt ceiling, because the Constitution does not give him that power. It is easy enough to figure out the constitutional system by reading it and some illuminating history.

Arthur B. Macomber is a Coeur d’Alene attorney.

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