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The Debt Ceiling and the Constitution [1]

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Date: 2023-05-23

Originalists take note: The Constitution has a lot to say about covering the federal government's debts.

Raising the debt ceiling and authorizing the US Treasury to issue more debt to pay existing obligations are constitutional issues. The 14th Amendment should be invoked. It states, “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of [various expenses] shall not be questioned.” The word “including” here means “not limited to,” so expenses already legally incurred are debts of the United States “which shall not be questioned.”

Arguably, Congressional Republicans are questioning the validity of our debt by refusing to vote for a clean debt limit increase. The debt ceiling does not authorize spending to pay new debts; it simply allows the government to pay obligations that Congresses and presidents of both parties have already legally incurred, which have been “authorized by law.” To avoid questioning them in violation of the 14th Amendment, we must issue more debt.

These Constitutional issues aren't just theoretical. Although it's not likely, if Congress doesn’t raise the debt ceiling, it's still conceivable Republicans might go to the Supreme Court to seek an injunction against the US Treasury issuing more debt.

If they got one, global financial chaos and suffering would ensue. Even if the Supreme Court sided with Treasury and upheld the 14th Amendment, the GOP would have shown its willingness to disrupt the global economy and trust in American governance.

Though it may seem like a no-win, irrational proposition, seeking an injunction to stop issuing new debt can’t be ruled out given the unpredictable and irrational behavior of Congressional Republicans Speaker McCarthy recently appointed to powerful committees.

For example, Ralph Norman pressured Mark Meadows to have Trump invoke martial law to prevent Biden’s inauguration. Scott Perry pedaled a conspiracy theory about an Italian defense contractor working with the CIA flip votes from Trump to Biden via military satellites. At a hearing on hate crimes against Asians, Chip Roy said lynchings bring justice, and when asked to clarify, doubled down on it. He also voted against the Emmett Till Anti-lynching Act. Among Marjory Taylor Greene’s many outrageous canards is her claim that a global child-sex trafficking ring is backed by the government and run by celebrities and politicians from a DC pizza restaurant.

If they can do all this, it’s not so farfetched to suppose Congressional Republicans might ignore the destructive consequences and fight debt issuance before the Supreme Court. And it's not clear how the Court would rule if they did.

The Court is currently populated with originalist Justices who interpret the Constitution according to what they think the framers intended when they wrote it, as if the Constitution were frozen in time.

One would think the Supreme Court wouldn’t want to be responsible for upending the financial system by preventing the US from issuing debt. Yet it can't be ruled out.

Justice Clarence Thomas’ reading of the 2nd Amendment in New York Rifle & Pistol Association v. Bruen is an example of originalism taken to extremes. Asked what the difference was between himself and Thomas, Justice Antonin Scalia once said “I am an originalist. I am not a nut.”

But originalists will find support for upholding the 14th Amendment and continuing to issue debt in the Federalist Papers, one of the most important sources for understanding the original intent of the Constitution. Paper Number 30 states, “The Constitution must embrace a provision… for the payment of the national debts contracted…for disbursements out of the national treasury.”

Constitutionally as well as fiscally, there is no choice but to continue issuing debt. The GOP talk point that Democrats spending too much and running high deficits somehow justifies blocking debt issuance is pure partisan hogwash.

When they’re in power, Republicans have consistently run higher deficits and increased the debt more than Democrats, through a pattern of tax cuts and faulty projections that they would pay for themselves with economic and revenue growth. It’s true that Barack Obama raised the national debt 64.4%, which was key in preventing another depression in the wake of the 2008 financial crisis. But Ronald Reagan’s tax cuts raised the debt by 160.8%.

Today’s debt posturing is a national embarrassment. The GOP’s current position reflects pernicious partisanship, evasion of the Constitution, and abandonment of the truth and the public good.

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[1] Url: https://www.dailykos.com/stories/2023/5/23/2170893/-The-Debt-Ceiling-and-the-Constitution

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