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 [...]
Archive of posts filed under the Power of the Purse category.
Has Obama Already “Invoked” the Public Debt Clause?
Jack Balkin says yes. Balkin argues that by telling bondholders that they will get paid regardless of whether the debt limit is raised, the President is implicitly invoking the Public Debt Clause. I say no (or, rather, not necessarily). One could construe the existing statutory scheme to permit prioritization wholly apart from any constitutional issue. [...]
Prioritizing Payments if the Debt Limit is Reached
This CRS report from early June discusses a number of legal and policy issues (not including the Public Debt Clause) that would arise should Congress not raise the debt limit. Of particular interest is its discussion of the Treasury Secretary’s authority to prioritize payments once the debt limit is reached: Some have argued that prioritization [...]
A Thought on the Public Debt Clause and Article VI
It seems fair to say that the Public Debt Clause will get more attention from scholars in the next few years than it did for its first 145 years of existence. In that connection, I want to suggest that Article VI, clause 1, deserves some thought. That clause provides that “[a]ll Debts contracted and Engagements [...]
The Public Debt Clause and the President’s “Right to Ignore Law”
While I would like to move on from the Public Debt Clause issue, I feel obliged to remark on Katrina vanden Heuvel’s column, entitled “Invoke the 14th — and end the debt standoff,” in the Washington Post today. She writes: President Obama may find that there is only one course left to avoid a global [...]
A Further Reply to Professor Balkin
Professor Balkin has replied to my critique of his analysis of the legislative history of the Public Debt Clause. It is a powerful effort, but I think the reader will conclude that its power lies more in the cleverness of its author than the merits of its argument. At the outset, let me say that [...]
Public Debt Clause Roundup
There have been a number of Public Debt Clause developments over the last couple of days. Freakonomics. Michael Abramowicz weighs in with some thoughts on the current debate. Among his interesting observations: if one accepts his broad reading of the Public Debt Clause, it is not only the debt limit that would be unconstitutionally suspect. [...]
“Threatening Default”: A Response to Professor Balkin
There is a plethora of Public Debt Clause news, but let’s begin with Professor Jack Balkin’s analysis of the Clause’s legislative history. Balkin contends that the key part of that history is the proposal made by Senator Benjamin Wade to insert the following language into the draft of the Fourteenth Amendment: “The public debt of [...]
He May Not Be a Witch, But He Sure Can Make Congressional Powers Disappear
Although an acquaintance (a noted constitutional scholar) emailed me today “it is difficult to believe anyone could be so far gone as to think the President can transgress a debt limit on his own authority,” he underestimates the “can-do” (or maybe it should be “can’t-do”) spirit of the U.S. Senate. According to this article, several [...]
If the President Violates the Constitution and No One has Standing to Sue, Did he Really Break the Law?
That seems to be the question (of the “if a tree falls in the woods” variety) posed by this New Republic article entitled “The Debt Ceiling: Why Obama Should Just Ignore it.” Although the author cites Garrett Epps and others for the proposition that there is a “strong argument” that the President has the authority [...]