Barack Obama and the Debt Limit and the 14th Amendment -- from a Republican perspective

“Never let a crisis go to waste.”

How many times have we heard that before?  And how many times have President Obama and other top Democrats done just that?  When a crisis occurs, instead of solving it, Democrats use it as an excuse to expand their power.

Now, what's the latest crisis the Democrats want to exploit?  It's the debt limit.

Trying to resolve the problem, Republicans want to reduce spending so as to comply with the legal maximum on federal government borrowing.  Democrats, in shameful contrast, are looking for a way to ignore the law.  How could President Obama and congressional Democrats use the debt limit crisis to increase both spending and their own power?

Democrat apologists would like to think that they’ve ridden to Obama's rescue.  Their idea?  They claim that the 14th Amendment would authorize the president to ‘take extraordinary measures’ in ‘disregarding the debt limit.’  That vague, ominous phrase – extraordinary measures – should make any patriot afraid, very afraid of what a lawless administration might do.

Bruce Bartlett writes: ‘The essence of the argument involves section 4 of the Fourteenth Amendment to the Constitution, which reads: 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.’

Garrett Epps chimes in from a pro-Confederate perspective -- ‘The Lincoln administration had borrowed freely to finance the war machine’ -- but both he and Bartlett ignore the true context of the 14th Amendment.

And now, the Washington Examiner and Talking Points Memo report that Senator Chuck Schumer (D-NY) acknowledges that the Obama administration is considering using the 14th Amendment as ‘a sort of escape hatch’ from obeying the law.

Let's take a close look at that so-called escape hatch, the 14th Amendment.

Once the Civil War ended, Republicans knew that the former rebels would eventually be rejoining Congress – as Democrats.  Soon enough, with a congressional majority the Party of Slavery could re-establish their slave system.  Republicans had to act fast, so they amended the Constitution.  In truth, Republicans wrote the 14th Amendment to protect the country from Democrats.  And yet, Democrats now want to use the 14th Amendment to pummel Congress into submission.

The following is adapted from chapter 6 of Back to Basics for the Republican Party:

“In April 1866, after hearing witnesses recount the horrors inflicted on emancipated slaves, Republicans on the Joint Committee on Reconstruction determined that the only way to overcome the Democratic Party's defense of the slave system and keep the country safe from any future Democrat majority in Congress once the southern states were readmitted was to amend the Constitution.  Once part of a 14th Amendment, the precepts of the GOP's 1866 Civil Rights Act could not be repealed by the Democrats or struck down by the Supreme Court.

Under the supervision of Rep. John Bingham (R-OH), drafting of the 14th Amendment was a Republican team effort.

Section 5 of the 14th Amendment empowered Congress to enact enforcing legislation for the anti-slavery system and anti-Confederate provisions of the other sections.  Section 4 forbade any southern state government from honoring the debts of the Confederacy or any state incurred during the rebellion.  It made sure that no future Democrat majority in Congress could repudiate debts of the U.S. Government incurred to suppress the rebellion.  Section 3 effectively overruled the thousands of pardons that the Democrat president, Andrew Johnson, had handed out to fellow Democrats who had fought for the Confederacy.  Section 2 abolished the constitutional practice of counting black people as only 3/5 of whites for apportionment.  Section 1 overruled the Dred Scott decision, for which the seven Democrats on the Supreme Court had voted unanimously.  And, state governments could no longer abridge any citizen's ‘privileges and immunities,’ deprive any person of ‘life, liberty or property, with due process of law,’ or deny to any person ‘equal protection of the laws.’

Congress passed the 14th Amendment in June 1866, all votes in favor being from Republicans and all voters against being from Democrats.  Though he had no constitutional power over the ratification process, President Johnson (D-TN) offered $10,000 to help block the amendment.  Opposition by the Democrat-controlled former rebel states delayed ratification for two years.”

Republican heroism and Democrat perfidy –- this is the proper context of the 14th Amendment.  Today's Democrats are grasping at Section 4.  President Obama could likely cite “The validity of the public debt of the United States... shall not be called into question” in order to justify ignoring the debt limit.  But, as you now know, the purpose of that language was to forbid Democrats from repudiating federal government debts incurred fighting the Civil War.  The 14th Amendment has nothing to do with a debt limit and clearly does not authorize Barack Obama to disregard the fact that the Constitution vests in Congress, not the president, the power “to borrow Money on the credit of the United States.”

What if President Obama takes the law into his own hands?  How should Republicans respond to a president who held the Constitution in such contempt?  Andrew Johnson they impeached for a lot less.

UPDATE
A reader suggested that the Supreme Court decision Perry v. United States (1935) supports the Democrat position.  Here is my response:

[According to your argument], President Obama could invoke any such supposed constitutional obligation to enable him to disregard Congress and do whatever he wants -- and THAT is the whole point.  I've read the Perry decision, and you can't see the forest for the trees.  Obama is using the debt ceiling crisis -- a crisis entirely of his own making -- in order to seize even more power from Congress.  You are being played.

ANOTHER UPDATE
In response to a comment that the 14th Amendment would compel President Obama to break the debt limit, that is borrow money on his own, without congressional authorization, I wrote that even without additional borrowing authority, there is much more than enough tax revenue to service federal government debt.

Michael Zak is a popular speaker to Republican organizations around the country.  Back to Basics for the Republican Party is his acclaimed history of the GOP, cited by Clarence Thomas in a Supreme Court decision.  He is also the author of the 2005 Republican Freedom Calendar.  His Grand Old Partisan website celebrates more than fifteen decades of Republican heroes and heroics.  See www.grandoldpartisan.com for more information.

Comments

[devin_97035]

The "debt" talked about in the Perry decision is debt to a creditor that has already been issued (specifically in Perry he wanted to redeem the debt for gold as the debt said it could be). Spending that hasn’t yet been paid is not "debt". Debt requires a creditor, from whom you borrowed money.

If Obama wants to say "look, we don't have enough money coming in taxes to pay the interest/principle on the debt so we had to sell off US assets like the 300 billion dollars in gold we have", maybe he could make that argument, but
the Constitution only makes a requirement for debt, not spending. And even then, it only says that it shall not be
questioned, it doesn’t authorize any additional debt nor
grant a power to the president to authorize any.

[Michael Zak]

I've read the Perry decision, and you can't see the forest for the trees. Obama is using the debt ceiling crisis -- a crisis entirely of his own making -- in order to seize even more power from Congress.

You are being played.

[John N]

Financial obligations are created when Congress passes a law and it is signed by the President.

Obligations like SS, Medicare, pensions etc are thus legal and must be fulfilled.

[John N]

You may not like it and I would prefer the 2 sides work out a balanced deal but if that cannot happen the President has no choice but to uphold his Constitutional duty.

If there is a conflict between a law like the ceiling and the Constitution the latter is governing law. That is basic Con law in any issue.

[John N]

Read the Perry opinion. it is specific to the debt issue and that is what any President is authorized to do.

[Michael Zak]

John, if you do understand this, then President Obama could invoke any such supposed constitutional obligation to enable him to disregard Congress and do whatever he wants -- and THAT is the whole point.

[Michael Zak]

Marc, what is ridiculous is the Democrats' assertion that the 14th Amendment would authorize President Obama to break the debt limit, that is borrow money on his own, without congressional authorization. Even without additional borrowing authority, there is much more than enough tax revenue to service federal government debt.

[Marc]

Ridiculous argument.

The "debt" that cannot be ignored, Constitutionally, is money that has already been borrowed after being authorized by Congress. In other words, the bonds that have already been sold must be honored.

It would not include money that has not yet been borrowed. The debt that must be honored is that which is "authorized by law". Borrowing above the debt limit is specifically not authorized by law, because that borrowing is the sole purview of Congress, not the President acting as dictator.

We do not have to honor debts that have not yet been incurred. That is ridiculous.

The argument that we cannot do everything we want to without borrowing more does not neccessarily mean more borrowing is the only option. Congress can reduce spending, raise taxes, sell public property, etc.

There are many ways of raising revenue. This is a truth not changed by the fact that Congress hasn't figured that out yet.

[John N]

If I understand this the Constituti­on trumps any other law like the debt ceiling.

The debt ceiling raise is needed NOT for new spending but for what has been already authorized by Congress (budget, SS et al), so the President has 2 duties:
1) Uphold laws that have been passed
2) Debt has already been legislated so it is valid and "shall not be questioned­.

Here is the relevant case law:

PERRY V. UNITED STATES, 294 U. S. 330 (1935)

...The contention necessaril­y imports that the Congress can disregard the obligation­s of the government at its discretion­, and that, when the government borrows money, the credit of the United States is an illusory pledge…

The Constituti­on gives to the Congress the power to borrow money on the credit of the United States, an unqualifie­d power, a power vital to the government­, upon which in an extremity its very life may depend. The binding quality of the promise of the United States is of the essence of the credit which is so pledged. Having this power to authorize the issue of definite obligation­s for the payment of money borrowed, the Congress has not been vested with authority to alter or destroy those obligation­s.