Constitutional Nonsense on Debt

Lo and behold! As we celebrated this Fourth of July amid the debt-ceiling fight, the netroots and progressive pundits suddenly discovered the Constitution’s relevance in fiscal matters. It doesn’t seem like that long ago — because it wasn’t that long ago — that they ridiculed the very idea of constitutional limits on Congress in economic policymaking, and even mocked the GOP’s public reading of the Constitution at the beginning of the current session.

Of the new House rule requiring a statement of the constitutional authority for bills, Ian Millhiser wrote at ThinkProgress that “the constitutional lunatics are now in charge of the GOP’s asylum.” It was completely unnecessary for Congress to cite constitutional justification for its actions, Millhiser proclaimed, because “Article I of the Constitution gives Congress broad authority” and “leaves budgeting decisions almost entirely to the judgment of Congress.”

But now that the GOP Congress is exercising this “broad authority” — or rather, what has always been its basic authority — over the nation’s purse strings to press for spending cuts as a condition of hiking the $14 trillion debt ceiling by another trillion or so, Millhiser, the Huffington Post, and The New Republic have suddenly discovered that in at least this one instance, the Constitution supposedly limits Congress’s economic powers. Section 4 of the 14th Amendment, which states that “the validity of the public debt of the United States, authorized by law . . . shall not be questioned,” makes the debt ceiling itself unconstitutional, their argument goes. Folks who were railing against the “unitary executive” a few years ago now argue that if Congress doesn’t give Obama what he wants, this section gives him the constitutional authority to issue new debt by himself; otherwise, there would not be enough money to pay the existing debt, and the 14th Amendment does not allow that.

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— John Berlau is director of the Center for Investors and Entrepreneurs at the Competitive Enterprise Institute. CEI counsel for special projects Hans Bader provided invaluable insights and assistance with this article.