As the national debt rises rapidly toward the latest “ceiling”, Professor Epps once again proposes (“A Gun to the Debt-Ceiling Fight”) the President invoke (or threaten to invoke) Section Four of the Fourteenth Amendment to avoid all that unpleasantness from last time. Needless to say, I don’t think any more of the legal merits of this proposal than I did before. I am also not too sure that Epps is right in thinking that the President’s biggest problem is the perception he is too weak. I mean, the man has a “kill list,” for Pete’s sake.
But let me concentrate on the positive. I wholeheartedly agree with Epps that the executive branch should share with us any analysis of Section Four that may have been done in connection with debt crises of 2011, 1995-96 or 1986 (or at any other time). Epps reports “I called the U.S. Department of Justice to ask whether the Office of Legal Counsel has issued, or is preparing, a formal opinion on the President’s possible power under Section Four; the DOJ’s spokesman did not return my call.”
Well, I can beat that. I filed a FOIA request last July seeking that the Treasury Department produce “[a]ll documents that contain, discuss, refer or relate to any legal opinion or analysis by the Treasury Department General Counsel, or any attorney thereof, of Section Four of the Fourteenth Amendment (also known as the Public Debt Clause), or any application or potential application of Section Four to the statutory debt limit.” I received a prompt response to tell me that . . . well, that I wouldn’t be receiving a prompt response. According to the Treasury Department, “unusual circumstances exist regarding a search and review of the information requested which may result in voluminous records.” Since then, nada.
It’s a little surprising that my request, which I thought was pretty narrow, would (or might) result in “voluminous records.” Presumably this means that Treasury has done some sort of analysis of Section Four. I assume that Epps would like to see it. So would I.
And there is no reason why the Treasury Department shouldn’t share it. Its not like we are asking to see the kill list, after all.
Update: Here is the FOIA request.