Invisible_Insane said:
What are your guys' thoughts on the talk emerging about Obama resolving the debt ceiling dispute constitutionally? The relevant section is quoted below.
I'm not sure of precisely what it would entail, but I think if it had to come down to that, it would be another grievous blow for the separation of powers, checks and balances, etc.
I think the debt limit probably is constitutional insofar as it limits assumption of debt but unconstitutional insofar as it would preclude payment of it. From the Supreme Court:
The Fourteenth Amendment, in its fourth section, explicitly declares: 'The validity of the public debt of the United States, authorized by law , ... shall not be questioned.'
While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the Civil War, its language indicates a broader connotation. We regard it as confirmatory of a fundamental principle which applies as well to the government bonds in question, and to others duly authorized by the Congress, as to those issued before the amendment was adopted. Nor can we perceive any reason for not considering the expression 'the validity of the public debt' as embracing whatever concerns the integrity of the public obligations.
We conclude that the Joint Resolution of June 5, 1933, in so far as it attempted to override the obligation created by the bond in suit, went beyond the congressional power.
In that case:
Plaintiff brought suit as the owner of an obligation of the United States for $10,000, known as 'Fourth Liberty Loan 4 1/4% Gold Bond of 1933- 1938.' This bond was issued pursuant to the Act of September 24, 1917, 1 et seq. (40 Stat. 288), as amended, and Treasury Department circular No. 121 dated September 28, 1918. The bond [294 U.S. 330, 347] provided: 'The principal and interest hereof are payable in United States gold coin of the present standard of value.'
Plaintiff alleged in his petition that at the time the bond was issued, and when he acquired it, 'a dollar in gold consisted of 25.8 grains of gold .9 fine'; that the bond was called for redemption on April 15, 1934, and, on May 24, 1934, was presented for payment; that plaintiff demanded its redemption 'by the payment of 10,000 gold dollars each containing 25.8 grains of gold .9 fine'; that defendant refused to comply with that demand; and that plaintiff then demanded '258,000 grains of gold . 9 fine, or gold of equivalent value of any fineness, or 16,931.25 gold dollars each containing 15 5/21 grains of gold .9 fine, or 16,931.25 dollars in legal tender currency'; that defendant refused to redeem the bond 'except by the payment of 10,000 dollars in legal tender currency'; that these refusals were based on the Joint Resolution of the Congress of June 5, 1933, 48 Stat. 113 (31 USCA 462, 463), but that this enactment was unconstitutional, as it operated to deprive plaintiff of his property without due process of law; and that, by this action of defendant, he was damaged 'in the sum of $16,931.25, the value of defendant's obligation,' for which, with interest, plaintiff demanded judgment.
In other words, the US issued a bond, that, due to subsequent legislation, it refused to pay according to its terms. The Court found the subsequent legislation unconstitutional. The rationale:
The Constitution gives to the Congress the power to borrow money on the credit of the United States, an unqualified power, a power vital to the government, upon which in an extremity its very life may depend. The binding quality of the promise of the United States is of the essence of the credit which is so pledged. Having this power to authorize the issue of definite obligations for the payment of money borrowed, the Congress has not been vested with authority to alter or destroy those obligations.
I am of two minds. I actually think sovereignty comes before the interests of private creditors. In other words, if the choice is between telling bondholders to fuck off or appeasing them by instituting severe pain on the domestic population, bondholders can, in my view, fuck off. And any retaliation can, if necessary, be met with the organized force of the State. At that same time, I don't think this is anything to be done lightly, but I don't think there is any reason for an entire society to be held captive by capital.
Also, the Court decision above is pretty generous in its interpretation of the 14th Amendment. The clause I bolded above is important. Read in context, this section of the 14th Amendment (the same post-Civil War amendment that required state governments to extend and protect federal constitutional rights) is clearly meant to signal that the government would be honoring debts of the United States but rejecting any debts incurred by the Confederacy. The next sentence of the Section reads: "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." I suspect that sentence is the true purpose of the section--to disclaim any obligation for the debts incurred by the rebellion, whereas the first sentence was intended as reassurance. The Supreme Court interpreted it very broadly when it didn't have to do so, but there it is.
Of course, reaching the debt limit does not mean that the US has to quit paying on its obligations. It just means it cannot incur more debt. It may mean the US will have to quit paying for
itself, which will be very injurious to Americans. This raises the precise question above: at what point does the interests of the public supersede the interests of bondholders?