With disaster looming and no resolution in sight, several senators are studying the question of whether the debt ceiling may also be unconstitutional:
“The validity of the public debt of the United States, authorized by law… shall not be questioned,” reads the 14th Amendment.
“This is an issue that’s been raised in some private debate between senators as to whether in fact we can default, or whether that provision of the Constitution can be held up as preventing default,” Sen. Chris Coons (D-Del.), an attorney, told The Huffington Post Tuesday. “I don’t think, as of a couple weeks ago, when this was first raised, it was seen as a pressing option. But I’ll tell you that it’s going to get a pretty strong second look as a way of saying, ‘Is there some way to save us from ourselves?’”
By declaring the debt ceiling unconstitutional, the White House could continue to meet its financial obligations, leaving Tea Party-backed Republicans in the difficult position of arguing against the plain wording of the Constitution.
The 14th Amendment’s Public Debt Clause has never been tested in court, so it is anyone’s guess how it would apply if President Obama decided to save the country from economic ruin by continuing to spend the money Congress lawfully appropriated after we hit the debt ceiling. But it is not even clear that courts would take the case if someone sued to force the United States to default on its debts.
For one thing, no one is allowed to bring a lawsuit unless they can show that they have been personally injured by an allegedly unlawful action — a requirement known as “standing.” It is not clear who would have standing to claim that they were injured by the continued viability of the American economy, and the best candidate may be the most unsympathetic plaintiff imaginable: “those who purchased credit default swaps which would pay off in the event of government default.”
And if such a vampiric investor were to appear and successfully claim standing to sue, it is also not entirely clear that the courts wouldn’t deem this question to be beyond their reach. The Supreme Court has long recognized that certain matters — foreign relations or questions about when military hostilities begin or end, for example — are “political questions” that should be resolved by the elected branches and not by judges. In its seminal opinion laying out when courts should stay their hand, the justices also suggested that a political question may arise in cases that “risk…grave disturbance at home.”
Surely, a lawsuit claiming that the entire United States economy must be hobbled by a crippling default meets the definition of a “grave disturbance at home.”
A reader points out that, in Perry v. United States, the Supreme Court did briefly discuss the Fourteenth Amendment’s Public Debt Clause. Although this is true, Perry concluded that Congress cannot outright cancel its debts, so it presents a very different case that the one presented by the present default crisis.