Is the debt ceiling unconstitutional?

A broad reading of the 14th Amendment might allow Obama to bypass Congress and continue piling up debt — without caving to GOP demands

President Obama
(Image credit: Alex Wong/Getty Images)

For weeks, the conventional wisdom in Washington has been that the federal government will default on its debt if the congressionally mandated limit on the nation's borrowing isn't raised by Aug. 2. But with Democrats and Republicans still struggling to reach a deal on hiking the debt ceiling, a new option is emerging: Democrats might simply declare that the debt ceiling is unconstitutional, scrapping the need for a deal at all. According to the 14th Amendment, "The validity of the public debt of the United States, authorized by law... shall not be questioned." That means the Obama administration can keep on racking up debt, even if Congress doesn't raise the debt ceiling, says Sen. Chris Coons (D-Del.). Could this new approach really work?

Absolutely: The language in the 14th Amendment is "extraordinary," says Garrett Epps at The Atlantic. Its wording is "unqualified and sweeping," which means that the Constitution places debt payments and the payment of already-appropriated funds "above the vagaries of congressional politics." If the Obama administration adopted this broad reading of the Constitution, using it in their political favor, it "would be bold"—but it wouldn't be wrong.

"Our national debt 'shall never be questioned,' the Constitution says"

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Still, this is uncharted territory: "The 14th Amendment's Public Debt Clause has never been tested in court," says Ian Millhiser at ThinkProgress. And if the White House declared the "unspeakably stupid" notion of the debt ceiling unconstitutional, it's hard to know exactly how a court case would play out. Someone would have to sue, alleging that they've been personally injured "by the continued viability of the American economy." Furthermore, the Supreme Court has typically considered matters like this to be "political questions" that should not be resolved by judges. But with today's court, "it's anyone's guess."

"Senators float constitutional solution to debt ceiling"

And we shouldn't enter it: "Layering a constitutional crisis over political gridlock" would get the Obama administration its victory, says Ezra Klein at The Washington Post. "But it’ll fail terribly in terms of sustaining the market’s confidence in our political system." The danger behind failing to raise the debt limit has never been about whether our country can pay back its debts — we can, and the market knows that. Instead, it's the "brutal," "irresponsible" fight over the debt that would cause the market to "re-evaluate the faith" it has in our ability to make "sound economic decisions" in the future. A court case spotlighting our political system's inability to reach compromises on these economic issues would be "a step towards total breakdown."

"The debt ceiling might be unconstitutional, but now is not the time to find out"

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