.. this article is from National Review ‘ s Bench Memos , courtesy of legal pundit and analyst Matt Franck …
Princeton historian Sean Wilentz has a somewhat overheated op-ed in the New York Times today, arguing that the Fourteenth Amendment’s provision on the public debt somehow authorizes President Obama to take “emergency” steps of his own in the event of a default if the debt ceiling is not raised.
Except that Wilentz acknowledges that the amendment itself “does not give the president the power to raise the debt limit summarily.” So what exactly is Wilentz arguing?
Taking a hyper-Lincolnian view of emergency powers, coupled with a downright un-Lincolnian vagueness about the facts of the case, Wilentz argues that the president, after more pointless talking about this all being the Republicans’ fault, could, “once a default occurred, use his emergency powers to end it and save the nation and the world from catastrophe.” Sure. Then he could step back into that phone booth and become mild-mannered Barack Obama again. Seriously, that is the sum total of Wilentz’s recommendation.
Let’s review. The Fourteenth Amendment says, in Section 4: “The validity of the public debt of the United States, authorized by law . . . shall not be questioned.” The debts authorized by law are those to which Congress has obligated the nation by employing its power in Article I, Section 8 to “borrow Money on the credit of the United States.” The debt ceiling is fixed by congressional action under this clause of the Constitution. The president is constitutionally powerless to undertake any further borrowing on the credit of the nation without congressional authorization.
In truth, Section 4 of the Fourteenth Amendment does not empower the president to take any emergency powers that would incur more obligations of debt. On the contrary, it should be read to constrain him to pay the debts we already owe, from current Treasury accounts, before spending on anything else.
Annual service on the national debt, according to the Treasury, is in the neighborhood of $415 billion. The Treasury’s income (total receipts from taxes and other sources) for fiscal 2013, was close to $2.5 trillion. There is roughly six times as much income at the Treasury as is needed to pay the interest (and any capital due on bonds) on the national debt.
If the debt ceiling is not raised, the president is obligated by the Fourteenth Amendment to see to it that Treasury services the outstanding debt. All other spending, from the standpoint of the Constitution, is truly “discretionary,” including all “entitlement” spending, which is not in the category of constitutionally protected debt obligations. The nation’s creditors are at the head of the line. But there is plenty in the Treasury to take care of them. It’s the rest of the public budget that is at risk, not the nation’s credit.
Wilentz’s default emergency, in short, is wholly imaginary. So therefore is his conjuring of extra-constitutional “emergency” powers residing in the president to “save the nation and the world from catastrophe.” Long before we might need to ask Professor Wilentz what Chavezian powers he has in mind, we will be past this particular “crisis.”
… LEC again here — actually , the revenue is closer to about $2.9 to $3.0 trillion for the coming fiscal year . Yea , it is that much . That is about $248 billion a month . Other than individual income taxes , which are withheld , and come in throughout the year …
… there are some estimated taxes , paid by wealthier investors , as well as companies , that are paid quarterly . Those quarterlies are due by either the 15th of the month , or the last day of the month , in March , June , September , and December .
.. So , the tax money comes in , more or less , pretty steady . Matt ‘ s estimate on interest expense is probably spot – on , as well .
.. What things also come to includes the 14th Amendment to the Constitution . It , along with the 13th and 15th Amendments , were brought in , more or less , as a group , in the 1860s , culminating in the ratification of the 15th Amendment in 1870 . They were all proposed during the 1st term of Lincoln , while the Civil War was still raging . But , after his assasination , and the end of the war , the Amendments were pushed through with relish to curb the power of the eventually – to – return Southern states .
.. They were also aimed at curbing (somewhat) the Presidential powers of the new President , Andrew Johnson , a Democrat from Tennessee . Johnson was the only Southern senator who did not resign his seat when the Civil War broke out , and when Abe Lincoln needed a running mate in the 1864 presidential election (against George McClellan) , he chose Johnson , thus making him (eventually) Vice – President . No one foresaw what was to come , though .
.. Those amendments were not just passed to enfranchise black citizens , and establish their citizenship , and their civil rights . As a part of the 14th Amendment , the so – called radical GOP wanted to block Johnson , or any successor , from taking in Southern war debts of the returning states . They wanted to be absolutely sure , so in it went .
.. Section 4 acts to prevent anyone in the Government , most of all a President , or anyone in his (or her) cabinet , from even thinking of repudiating or questioning U.S. debts . The Congress has the power to authorize the ability to borrow on the Credit of the United States , and they did not want anyone playing around with the credit or debt of the country . So Professor Sean Wilentz ‘ s New York Slimes op – ed is waaaay off .
.. Dr. Wilentz is a law professor , as well as a professor of history . For God ‘ s Sake , he should know better …
… the 14th Amendment to the U.S. Constitution …
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
Section 4. 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. 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.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
LEC here again — the 13th Amendment was passed in 1864 , and ratified in 1865 . It was the one to specificly ban slavery itself , forevermore . The 14th Amendment was passed in 1868 and ratified the same year , as a consequence of the impeachment and near – removal of Andrew Johnson . They knew with him leaving , and Ulysses Grant incoming , he could act to do some kind of fiscal or legal skullduggery in retaliation . The 14th acts , as I said above , to put some specific limits on Presidential power , so Professor Wilentz is way off base .
.. The 15th Amendment was passed in 1869 , and ratified in 1870 , to ensconce minority voting rights in our Constitution . At least , that was the idea . Unfortunately , the Amendment was tailored far too narrowly , and subsequent Court precedents allowed the Jim Crow laws , poll taxes , and other immoral acts to deny blacks and other minorities the franchise (the right to vote ) . It took eventually until the 1960s , culminating in the passage of the 24th Amendment (banning poll taxes and literacy tests) and the Voting Rights Act [in 1965] to firmly entrench the rights of minorities to vote in the U.S. Constitution .
.. Prof . Wilentz ‘ s article , in full …
Obama and the Debt
PRINCETON, N.J. — THE Republicans in the House of Representatives who declare that they may refuse to raise the debt limit threaten to do more than plunge the government into default. They are proposing a blatant violation of the 14th Amendment, which states that “the validity of the public debt of the United States, authorized by law” is sacrosanct and “shall not be questioned.”
Yet the Obama administration has repeatedly suppressed any talk of invoking the Constitution in this emergency. Last Thursday Jay Carney, the White House press secretary, said, “We do not believe that the 14th Amendment provides that authority to the president” to end the crisis. Treasury Secretary Jacob J. Lew reiterated the point on Sunday and added that the president would have “no option” to prevent a default on his own.
In defense of the administration’s position, the legal scholar Laurence H. Tribe, who taught President Obama at Harvard Law School, has insisted, as he put it two years ago, that “only political courage and compromise” can avert disaster.
These assertions, however, have no basis in the history of the 14th Amendment; indeed, they distort that history, and in doing so shackle the president. In fact, that record clearly shows that Congress intended the amendment to prevent precisely the abuses that the current House Republicans blithely condone.
Congress passed the 14th Amendment and sent it to the states for ratification in June 1866. Its section on the public debt began as an effort to ensure that the government would not be liable for debts accrued by the defeated Confederacy, but also to ensure that its own debt would be honored.
That was important because conservative Northern Democrats, many of whom had sympathized with the Confederacy, were in a position to obstruct or deny repayment on the full value of the public debt by paying creditors in depreciated paper money, or “greenbacks.” This effective repudiation of obligations already accrued — to, among others, hundreds of thousands of Union pensioners and widows, as well as investors — would destroy confidence in the government and endanger the economy.
As the wording of the amendment evolved during the Congressional debate, the principle of the debt’s inviolability became a general proposition, applicable not just to the Civil War debt but to all future accrued debts of the United States. The Republican Senate leader, Benjamin F. Wade of Ohio, declared that by placing the debt “under the guardianship of the Constitution,” investors would be spared from being “subject to the varying majorities which may arise in Congress.”
Two years later, on the verge of the amendment’s ratification, its champions inside the Republican Party made their intentions absolutely clear, proclaiming in their 1868 party platform that “national honor requires the payment of the public indebtedness in the utmost good faith to all creditors at home and abroad,” and pronouncing any repudiation of the debt “a national crime.”
More than three generations later, in 1935, Chief Justice Charles Evans Hughes, ruling in the case of Perry v. the United States, revisited the amendment and affirmed the “fundamental principle” that Congress may not “alter or destroy” debts already incurred.
House Republicans threatening to refuse to raise the debt ceiling — that is, force a repudiation of debts already accrued — would violate that “fundamental principle” of the Constitution.
Surely the lawyers advising and defending the White House, let alone the president, know as much. Refraining from stating this loudly and clearly, and allowing Congress to slip off the hook, has been a puzzling and self-defeating strategy, leading to the crippling sequester and the politics of chronic debt-ceiling crisis. More important, by failing to clarify the constitutional principles involved, the administration has neglected to do its utmost to defend the Constitution.
That failure has led to another abdication, involving constitutional action as well as constitutional principle. The White House, along with Mr. Tribe, has rightly pointed out that the 14th Amendment does not give the president the power to raise the debt limit summarily.
But arguing that the president lacks authority under the amendment to halt a default does not mean the executive lacks any authority in the matter. As Abraham Lincoln well knew, the executive, in times of national crisis, can invoke emergency powers to protect the Constitution.
Should House Republicans actually precipitate a default and, as expected, financial markets quickly begin to melt down, an emergency would inarguably exist.
In all, the Constitution provides for a two-step solution. First, the president can point out the simple fact that the House Republicans are threatening to act in violation of the Constitution, which would expose the true character of their assault on the government.
Second, he could pledge that, if worse came to worst, he would, once a default occurred, use his emergency powers to end it and save the nation and the world from catastrophe.
Were the president to act with fortitude, Republicans would continue to lambaste him as the sole cause of the crisis and scream that he is a tyrant — the same epithet hurled at Andrew Jackson, Lincoln and Franklin D. Roosevelt.
Lincoln, who became accustomed to such abuse, had some choice words in 1860 for Southern fire-eaters who charged that he, and not they, would be to blame for secession if he refused to compromise over the extension of slavery: “A highwayman holds a pistol to my ear, and mutters through his teeth, ‘Stand and deliver, or I shall kill you, and then you will be a murderer!’ ”
It is always possible that if the administration follows the two-step constitutional remedy, the House might lash out and try to impeach Mr. Obama. Recent history shows that an unreasonable party controlling the House can impeach presidents virtually as it pleases, even without claiming a constitutional fig leaf.
But the president would have done his constitutional duty, saved the country and undoubtedly earned the gratitude of a relieved people. Then the people would find the opportunity to punish those who vandalized the Constitution and brought the country to the brink of ruin.
Sean Wilentz is a professor of history at Princeton University.