With Pres. Obama's news conference yesterday signaling an impasse on the debt-ceiling talks, a lot of folks are asking whether Democrats can get around the debt ceiling simply by declaring it unconstitutional. Here's the relevant clause, from the 14th Amendment:
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.
Ezra Klein today writes that there's a plausible legal argument that this language supports a finding that the debt ceiling is unconstitutional. And Dave Weigel yesterday, also asked whether the debt ceiling is constitutional. Well, I don't think so.
Here's the tip-off: The article that Weigel links to doesn't question the constitutionality of the debt ceiling. It questions the constitutionality of defaulting. Two different things. The 14th Amendment doesn't prohibit Congress from capping how much money the US can borrow. All it does is prohibit Congress from failing to pay it back. Congress can cap its borrowing and still abide by the 14th Amendment in one of two ways: Stop borrowing, or raise the cap.
It's default that's not an option.
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