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Would it be “Unconstitutional” to Veto a Debt Limit Increase?

From the President’s veto message:

This bill would make it almost inevitable that the Government would default for the first time in our history. This is deeply irresponsible. A default has never happened before, and it should not happen now.

I have repeatedly urged the Congress to pass promptly legislation raising the debt limit for a reasonable period of time to protect the Nation’s creditworthiness and avoid default. Republicans in Congress have acknowledged the need to raised the debt limit [but] [t]his bill would threaten the Nation with default. . . .”

No, the Obama administration has not given me an advance copy of its planned veto should the Congress pass a short-term extension of the debt limit. The language quoted above is from President Clinton’s November 13, 1995 veto of H.R. 2586, which would have provided for a temporary and very short-term (one month) increase in the debt limit during the budget battle of 1995-96. (Incidentally, I learned about this veto from this helpful background report from the Committee for a Responsible Budget).

There are several things to note about this veto message. First, it raises precisely the same issues as have been debated in our current “unprecedented” debt limit crisis. Second, although it uses the same language that has been used to describe the position of the current Congress (“deeply irresponsible” to “threaten the Nation with default”), there is no claim that Congress’s failure to raise the debt limit in accordance with the president’s wishes is unconstitutional.

The message makes no mention of the Public Debt Clause. And there is no trace of a suggestion that the president has the authority to raise the debt limit on his own, notwithstanding the assertion of former President Clinton that this is what he would do if he were in President Obama’s shoes.

One can also ask whether, under Clinton’s theory, his 1995 veto was itself unconstitutional. After all, if the Constitution requires the Congress to raise the debt limit to avoid default, it must be the case that the President is constitutionally obligated to sign the bill that would raise the limit.

Of course, the constitutional arguments against the debt limit have generally relied on a “principle” (as opposed to a specific rule) that seems to turn on subjective judgments about motivation, such as who is acting “irresponsibly,” “dishonestly,” or “dishonorably.” Professor Dworkin, for example, says that the congressional Republicans are acting unconstitutionally because they know that their actions will make “default inevitable.” One wonders whether the same principle would extend to the 1995 bill, which allegedly made default “almost inevitable.”

No doubt the scholars making these arguments could review an Obama veto message and determine that it was constitutional because based on a sincere desire to protect the nation’s creditworthiness. But these scholars would have to concede, as a logical matter, that under their theory it is possible for a presidential veto of a debt limit increase itself to be unconstitutional. And if a president can decide that the Congress is unconstitutionally “threatening default” by failing to raise the debt limit, surely Congress could similarly decide that the president is unconstitutionally doing the same by vetoing such a bill.

What happens then? If the president issues what Congress views as unconstitutional veto, couldn’t Congress contend that the debt limit increase is nonetheless effective? Such a theory could be tested in court.  Those who were harmed by the administration’s failure to borrow money (such as Social Security recipients) would presumably have standing to challenge the alleged constitutional violation.

What a tangled web.

8 Comments

  1. John Puma says:

    I would suggest that the constitution in NO way “requires the Congress to raise the debt limit to avoid default.”

    The constitution requires only that the US honor its debts. It does not detail a mechanism to do so. The current mechanism to do so is the debt ceiling law, passed decades after the 14th Amendment.

    The House bill you refer to conditions debt ceiling increases, after six months, on the submission to the states (or is it ratification by the states) of a balanced budget amendment.

    Any constitutional problems there?

  2. Indigo Red says:

    A presidential veto would not necessarily be unconstitutional. The veto must still return to congress for either an override, in which case it would be law no longer subject to an unconstitutional veto charge, or the veto is upheld and again would not be subject to unconstitutionality as the agreement of congress would effectively nullify the original congressional act and everyone would be back at square one.

  3. Shag from Brookline says:

    I can’t believe that this:

    “If the president issues what Congress views as unconstitutional veto, couldn’t Congress contend that the debt limit increase is nonetheless effective? Such a theory could be tested in court.”

    is being presented with any sincerity or any sense of subtlety. Is there any precedent for an unconstitutional veto? Mr. Stern perhaps thinks he can goad Jack Balkin into a second response. That may be his goal as he has posed the query a number of times at Balkinization, as opposed to an intellectual exercise.

  4. John Puma says:

    Even if it were not unconstitutional to veto a debt ceiling increase, it sure would be great fodder for the radical right media AND probably reason for impeachment.

    Of course, Obama’s invoking section 4 of the 14th amendment to unilaterally honor maturing US debt would also probably be a reason for impeachment, despite the fact that, each house of congress is trashing debt ceiling legislation of the other.

  5. Shag from Brookline says:

    Since when did impeachment involve reason? With the GOP control of the House and the hatred for Obama, the “excuse” for impeachment could result if Obama did nothing or if he did something under Section 4 of the 14th Amendment. It’s not unconstitutional if the Congress fails to come up with a bill or if Obama were to veto a bill: It’s political.

  6. [...] veto of legislation increasing the debt ceiling also be unconstitutional? Michael Stern has an interesting post exploring this question at [...]

  7. cvw says:

    Let’s see if this “deal” passes congress and we will find out but since when does anyone really pay any attention to the Constitution of the United States anymore, really? Just go to an airport and try to get on a plane waving your copy of the 4th and see how secure you feel in your person.

  8. cvw says:

    They certainly don’t allow you to edit your comments here.

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