If the Debt Ceiling is Unconstitutional, How Would Anyone Know?

Garrett Epps thinks that the debt ceiling is unconstitutional; Bruce Bartlett agrees. I’m not so sure; the question would turn on whether appropriations and entitlements that the Treasury would need to borrow to pay for would be regarded as “public debt” within the meaning of Section 4 of the Fourteenth Amendment. You could argue it both ways.

But if the administration takes the position that it must continue to borrow to comply with the Fourteenth Amendment, who would stop it? Put another way, who would have standing to sue? Taxpayers clearly would not. Individual members of Congress? No: the Supreme Court’s 1997 decision in Raines v. Byrd would seem to foreclose that. Congress as a whole? Perhaps; but what would it require for Congress as a whole to bring the lawsuit? A joint resolution would be blocked by Senate Democrats. That leaves the House to bring the lawsuit, and one could easily argue that one house would not have standing any more than individual members of Congress would.

I think that Raines, and really the whole line of conservative standing decisions in the last two decades, were wrongly decided. But that’s what conservatives get by trying to slam the courthouse door shut. The right-wing judicial activists that now populate the Supreme Court have little compunction in violating precedent, even precedent of their own making, that do not comport with their policy preferences, and perhaps this will be another example of it. But there is a pretty strong argument that if the Treasury just goes ahead and blows through the debt ceiling on constitutional grounds, the courts will rule that no one has standing to challenge them. I’m looking forward to John Yoo having a tantrum about executive overreach.

[Cross-posted at Same Facts]

Jonathan Zasloff

Jonathan Zasloff is a professor of law at the University of California, Los Angeles.