Some observers, including Garrett Epps, who is a legal scholar, and Bruce Bartlett, who is not, have argued that Section 4 of the 14th Amendment makes the debt ceiling invalid. That Section reads, in relevant part:

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

That’s it, at least for the relevant parts. The only Supreme Court case law on it concerned whether government could renege on debts it made (no), and thus whether it applies to non-Civil War debts (yes).

So what’s the argument here? Recall that if there a conflict between statutes, the standard method of resolution is the “last-in-time” rule, i.e. whichever statute was passed more recently wins. The argument is that if Congress approves appropriations after the enactment of a debt ceiling, then it is unconstitutional to refuse to spend money for those appropriations. And the Treasury can’t issue T-bills and then refuse to make good on them. Those are decent arguments, although hardly sure-fire winners. The weakest link in the chain is entitlements, in other words, Medicare and Social Security. Congress enacted those before it enacted the debt ceiling (2006 IIRC), so those might not fall under this interpretation. As I have argued previously, whatever the merits of the claim, it may be that the only body with the authority to challenge a President making the claim would be a Congressional joint resolution, which would be blocked by Senate Democrats.

But here’s the kicker: whatever the legal merits of the 14th Amendment claim, its political virtues are overwhelming. Think about it from John Boehner’s perspective: if he agrees to increase the debt ceiling without significant Medicare cuts from Obama, he’s toast. But if he doesn’t agree to do that, Wall Street and GOP contributors go nuts. What’s he going to do?

And consider it from Obama’s perspective: if he agrees to significant Medicare cuts, he’s toast. But if he doesn’t, and the nation defaults, then the economy goes nuts and his re-election is imperilled.

Now, what if Obama does as Epps suggests and just issues more debt? It’s perfect from his perspective: he doesn’t cave, pleasing his base (and anyone who cares about good policy), while ensuring that there is no default.

But it is also perfect from the Republican leadership’s perspective. They don’t cave; they don’t increase the debt ceiling; and they can rail against Presidential imperialism, Obama’s socialist-Muslim dictatorship, etc. And if I am right about standing, no one ever has to bring this to a head because no one has standing to sue!

What about on policy grounds? That’s also a winner: the United States is the only develoepd country that requires a legislative vote for this. No problem there.

Perhaps the only loser is the Constitution. But even that’s not for sure, and since Bush v. Gore, Republicans certainly have no basis for complaining about that. Besides, playing games with Constitutional text to escape political crises is as old as the Republic itself. As Congressmember Timothy Campbell once asked of President Cleveland, “What’s a Constitution among friends?”

[Cross-posted at Same Facts]

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Jonathan Zasloff is Professor of Law at the UCLA School of Law.