As Andy Bloom noted here at Broad + Liberty last week, House Republicans have done their part in resolving the latest debt ceiling crisis by passing a bill to raise it, along with certain spending cuts designed to bring us slightly closer to fiscal sanity. Senate Democrats have not responded in kind, muddying the Biden White House’s plan to blame everything on the opposing party.
Senator John Fetterman, having recently rejoined his colleagues in person, joins them as well in refusal to pass a bill. Par for the course from a guy who was never overly fond of doing his job. But he one-ups his fellow solons this week in latching on to the latest conspiracy theory bubbling in the political blogosphere: that the Fourteenth Amendment to the Constitution eliminates any limits on our national borrowing.
“President Biden,” he says, “needs to consider using the 14th Amendment if necessary.”
If that’s vague, it may be because you thought the Fourteenth Amendment was about equal protection, privileges and immunities, national citizenship, and due process of law. Sure, that’s what 99 percent of Fourteenth Amendment case law is about, but if you listen to John Fetterman (or whoever writes his tweets,) all that racial equality stuff is secondary; “the whole reason why the 14th Amendment exists,” he says, is to eliminate the debt ceiling, a thing that didn’t even exist in 1866.
The insane delusion to which Fetterman’s tweet refers is Section 4 of the Fourteenth Amendment, which reads: “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. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.”
There are a few parts to that, but they all relate to the same thing as the rest of the amendment: the aftereffects of the Civil War the nation had just been through. Republicans in Congress in 1866 were concerned that Democrats would some day retake control of the legislature and reverse some of the arrangements they were then making concerning the financial costs of war. So they wrote that no matter who was in charge, the debts Congress ran up during the war — including promises of pensions to Union soldiers — would have to be paid. At the same time, they banned any future Congress from paying any debts that the former Confederate states incurred during that war, and banned any former slaveowner from being paid for the loss of his unfree laborers.
It worked. Democrats retook the House in 1875 and the Senate in 1879, but never tried to undo any of what Section Four took off the table. The clause largely faded from memory until debt ceiling fights became a recurring event in our time of runaway federal spending.
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Why? Because in that first sentence of Section Four, lawyers saw the germ of a way to further strip Congress of its power to control federal spending. “The validity of the public debt of the United States, authorized by law … shall not be questioned.” It looks, if you squint hard enough, like a way of saying that the United States can’t default. That the problem was already solved 150 years ago, but no one noticed until now.
Lawyers are great at motivated reasoning. I know: I am one. It’s kind of our whole thing. I still remember one of the first assignments I got as a young associate, when a partner asked me to analyze how a section of law applied to our client’s case. I worked up a thoroughly researched memo on how the law had been interpreted by the courts and how, in my opinion, our client was actually in the wrong. The partner looked at me like I just fell off the turnip truck. It dawned on me that I wasn’t supposed to say what the law meant, I was supposed to say that it said our guy was right, with as much documentation and tortured reasoning as I could muster.
It’s fine. That’s the system. Someone needs to be a zealous advocate for their client. But don’t confuse advocacy with governance. If the Democrats’ staff lawyers are arguing that the law says Republicans are just out of luck and can’t do anything, you might want to get a second opinion. It’s very similar, as Charles C.W. Cooke wrote for National Review on Monday, to the kind of arguments then-President Trump mustered as to why Vice President Pence should be able to unilaterally reject electoral votes and “send them back to the states.” No one had ever read the law that way before, and it flew in the face of how the rest of the Constitution worked, but if you don’t care about the rule of law and just want to win at all costs, you can find a lawyer to make the case for you.
In both these cases, the lawyers were lying. The clients were lying. Maybe some of the hardcore partisans who picked up the arguments honestly believed them. If so, they were truly misled by men who should have known better.
Let’s start with the text: saying the debt “shall not be questioned” is not the same as saying “the president can unilaterally borrow money in the United States’ name.” It doesn’t even mean that we can’t default. (It should go without saying, but we really shouldn’t default. It’s not unconstitutional, but it’s a terrible idea.)
When you can’t afford to pay a bill, that’s not the same as questioning its validity. Anybody who’s ever been through a rough financial situation knows this. When the rent is due and you don’t have it, you’re not denying that the debt exists or that you agreed — in writing — to pay it; you’re just saying “I don’t have your money.” There are consequences to that. You might get evicted, your credit score might take a hit. But none of it involves questioning the validity of debt itself, only your own ability to pay.
Biden and Congress must do what their predecessors have done for centuries: agree on a compromise and enact it into law.
Moreover, John Fetterman and those like him elide an important point in saying that President Biden should “use” or “invoke” the Fourteenth Amendment: nothing in that amendment — or anywhere else in the Constitution — gives the President the right to borrow money without the consent of Congress. The legislature is, and always has been, the branch in charge of taxing, spending, and borrowing. It’s not just a delegation of errands, it’s a critical part of the checks and balances the Framers designed.
When the Fourteenth Amendment was written, Congress passed individual acts to allow the government to borrow money. Set amounts were allowed, after which Congress had to pass more, or else cut spending or raise taxes to make up the difference. By the Progressive Era, federal programs became so large and so permanent that Congress instead passed a general borrowing law that said the government could borrow up to a certain amount if it needed it: the first debt ceiling.
It’s been the same ever since, just with bigger and bigger numbers.
The point here is that the debt ceiling is not Congress placing a limit on the President. It is Congress granting the President a limited amount of power to borrow.
John Fetterman and the rest want to pretend that that half-sentence of Section Four shifted that power to the President, that he may now — without resorting to the legislature — borrow any amount of money he wants. A massive shift in the power of the purse that no one noticed until now: it beggars belief.
It is, obviously, a lie. The Fourteenth Amendment did not give the President a secret unilateral borrow to add endless debt to the national ledger. John Fetterman should grow up and realize that there is no magical fix to this. Biden and Congress must do what their predecessors have done for centuries: agree on a compromise and enact it into law. Hard work, yes, but that’s the job, whether John Fetterman likes it or not.
Kyle Sammin is Broad + Liberty’s editor at large.
1) Congress authorized the spending by law.
2) As the chief executive (See Article II), the president has the duty to pay the bills and Congress cannot question those lawful bills (1st sentence of Section 4 of the 14th Amendment).
3) Therefore, any law requiring Congress to approve the raising of the artificially created “debt ceiling” before paying those lawful bills is unconstitutional.
It’s simple logic. (By the way, I agree with you that it’s not the reason the 14th Amendment was ratified, but preventing Congress from challenging the paying of lawful bills is the reason that sentence was included.)
But Congress didn’t do anything to make the debt payable–they still haven’t proposed an alternative of raising taxes, selling gov’t buildings, or cutting military spending, etc. I support the agreement Speaker McCarthy and President Biden have constructively negotiated. But in a situation where the money authorized needs to be gotten, Congress has not provided a triage mechanism that your argument requires it to do so.
Thorough analysis here, Kyle!! Senator Fetterman embarrasses all Pennsylvanians on a daily basis as his norm.
Kyle, absolutely spot on legal analysis, I can see you didn’t sleep through the constitutional law classes. As a lawyer, you know the old adage: “if you have the facts, argue the facts, if you have the law, argue the law, if have neither the facts or the law, bang on the table.” John Fetterman is our table pounder. The sad thing is the consistent way he embarrasses himself. It is a travesty of dignity for his staff to allow him to be manipulated by the Democratic Party. From the information I have gathered, he has never been a top tier scholar nor an indefatigable worker. My opinion is that he is in training to be President Biden’s replacement.
I will NEVER forgive my Pennsylvania neighbors who last year chose mr. fetterman to be their senate candidate over Conor Lamb, and then elected fetterman to the most deliberative legislating body the world has ever known.
It boils my blood knowing that one of the senators that represents me and all of my work colleagues has never worked an honest, 8-hour work day in his lifetime.
Fetterman is a failure in his personal life, senatorial responsibility and is the worst thing to happen to this once great state in over 100 years
I think fetterwoman meant the 85th amendment. And, I did not vote for him so I am not embarrassed. the radical democrat party put him in office. he is a reliable democrat vote.