Any presidential action to evade the debt ceiling would be unconstitutional

There are seven relevant constitutional provisions:

ARTICLE 1, Section 1. “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

1. Article 1, Section 8, CL. 1: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts . . . of the United States . . . .”

2. Article 1, Section 8, CL. 2: “To borrow Money on the credit of the United States . . . .”

3. Article 1, Section 8, CL. 18: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

4. Article 1, Section 10: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . .”

5. Article 2, Section 3: “[The president] shall take Care that the Laws be faithfully executed . . . .”

6. Amendment 5: “[N]or shall private property be taken for public use, without just compensation.”

7. Amendment 14: “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.”

Discussion and conclusions:

1.-3. Only Congress has the power to create U.S. debt and to make all necessary and proper laws regarding debt, including a debt ceiling.

4. Here is the key provision in this controversy. The president cannot withdraw from the Treasury except to the extent provided by law. Thus, if he were to pay debts for which there is no Congressional appropriation, he would violate 4. and 5. above.

5. The president cannot unilaterally ignore laws such as a refusal to raise the debt ceiling. In fact, he must obey the debt-ceiling legislation.

6. For the U.S. to default on a debt is a taking of creditor property without just compensation. Therefore if there is a default on U.S. debt, the creditors are left with the remedy of taking judgments against the U.S. and foreclosing on U.S. properties.

7. The 14th Amendment provision that U.S. debts shall not be questioned related to Civil War debt. Also on “shall not be questioned”. No one is questioning the validity of the debt. Even if the debt limit is not increased, the debt still remains, and creditors can enforce the obligation through the normal remedies as mentioned above.

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Published in: on July 14, 2011 at 6:52 am  Leave a Comment  

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