Opinion Forum

The President Has No Authority to Increase the Debt Limit Unilaterally

July 24th, 2011

According to an op ed piece in the New York Times linked in this Tatler article, the President can unilaterally increase the national debt limit if the Congress fails to do so. The Tatler article very properly takes issue with the authors of that piece. I should like to take issue with them based on what the Constitution actually says and does not say.

The learned constitutional scholars cite only one provision of the Constitution, the Fourteenth Amendment, as possibly authorizing the President to raise the debt limit unilaterally; that provision even they characterize as a red herring and further note that

Commentators pointed out that the language in the 14th Amendment, which commands that the validity of legally authorized public debt shall not be questioned, does not explicitly authorize the president to do anything.

I attempted to deal with the Fourteenth Amendment argument here and suggested that it makes no sense.

Here are the relevant provisions of the Fourteenth Amendment:

Section 4. 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….

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. (emphasis added)

The authors of the op ed piece contend that even without reference to the Fourteenth Amendment, the President would have the inherent power to raise the debt limit unilaterally should the Congress fail to do so. The thrust of their argument seems to be that a President’s gotta do what a President’s gotta do. They contend,

Our argument is not based on some obscure provision of the 14th amendment, but on the necessities of state, and on the president’s role as the ultimate guardian of the constitutional order, charged with taking care that the laws be faithfully executed.

Article II of the Constitution defines the powers of the President. The closest it comes to what the authors suggest is in Section I, and it comes not even close: “The executive Power shall be vested in a President of the United States of America.” That neither makes the President the ultimate guardian of constitutional order nor authorizes him to take over the functions of the Congress or, for that matter, of the Supreme Court.

Beyond their “a President’s gotta what a President’s gotta do” thesis, the authors point to nothing in Article II as supportive of their thesis. Article II could have granted the President extraordinary power to raise the debt limit unilaterally; it did not. The Constitution could have been amended to grant him that power; it has not been.

Nor do the authors mention the explicit provision of Section 8 of Article I (which defines the powers of the Congress) as follows:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States…. (emphasis added)

An increase in the debt limit is, by definition, an authorization to borrow money, a power given to the Congress to grant and not to the President to create in the absence of legislation authorizing it.

An outright violation of the Constitution in an effort to “save it” — as the authors appear to suggest would be acceptable — would be a perversion. The President, as the Executive, has defined powers and they include executing the laws. There is no constitutional provision or law requiring that the debt limit be increased and the President cannot fabricate one.

Among other things, Section 1 of Article II provides,

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—”I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” (emphasis added)

I fail to see how the President can “defend the Constitution” while usurping the powers of the Congress under it to engorge his own. An outright violation of the Constitution in an effort to “save it” would be a perversion.

(This article was first published at The PJ Tatler.)

Articles written by Dan Miller
Tags: 14th Amendment, Congress, Constitution, debt limit, power, President
Categories: News, Politics | Comments (3) | Home

3 Responses to “The President Has No Authority to Increase the Debt Limit Unilaterally”

Tom Carter | July 24th, 2011 at 4:13 pm

This whole thing has gone far beyond ridiculous. The debt limit has become almost meaningless since Congress routinely increases it as much as necessary to permit continued profligate spending. In the past, some Members have used their debt limit vote to make meaningless partisan points, like when then-Senator Obama voted against raising it.

Now, the Republicans have decided to use it as their line in the sand, even though they freely participated in the wild spending of the Bush years which are a big part of the current problem. The Democrats, of course, are using it as their own line in the sand to assure their leftist base and tax-consuming dependents that they’re still with them.

The ironic thing is, we don’t even have to have one humongous debt limit that has to be increased every time government debt hits the limit. It’s only been around in this form for about the past half-century, when Congress started using it as the most convenient way to meet its constitutional obligation to authorize the nation’s borrowing. There are other ways that are probably less amenable to political manipulation.

The bottom line, though, is the now complete uselessness of politicians in Washington. If we don’t inflict a heavy price on these parasites in November 2012, then we’ll just continue to get the government we deserve.

ADX | July 24th, 2011 at 7:14 pm

Lets end this debate… The President may not have the authority to raise the debt celing (a.k.a create new debt), BUT…… The President does have the authority to enforce existing laws and Bills already passed by congress. (Social Security Act, Federal Reserve Act, and many other Bills from the past. The President can sign an executive order to the Treasury, to continue making payments on outstanding Bonds that the government has issued, and to create new Bonds pursuant to Past legislations, to raise money for the federal government to operate. So the president can bypass Congress, and indirectly raise the ceiling, using his own authority, and Past legislation. This is Why we have a President… Thank you..

Brian | July 25th, 2011 at 6:24 am

ADX, he has the power to enforce those laws as far as lawfully, constitutionally appropriated money extends, and no further. So no, he may not bypass congress and indirectly raise the debt ceiling, as that would be an appropriation of money, a power very clearly granted to the House of Representatives in Art I Sec 8.

The two relevant clauses are:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

…