Can the President Raise the Debt Limit Unilaterally? Hell no!

by Rob Natelson

Some people are claiming that if Congress fails to raise the debt limit, the President can raise it himself unilaterally.  The claim is not only wrong, but far scarier for America’s future than a default would be.

Typical of those arguing this way is Bruce Bartlett, the formerly conservative economist who in recent years has been dashing to the left.

Barlett argues that “In the event that congressional irresponsibility makes default impossible to avoid, [the President] should order the secretary of the Treasury to simply disregard the debt limit and sell whatever securities are necessary to raise cash to pay the nation’s debts.”

Initially, you should understand that Barlett’s “Chicken Little” concerns are based on a false premise: That failure to raise the debt limit equals non-payment of national debt. The truth, however, is that there is plenty of revenue to pay the national debt (and the military, too). Doing so requires merely that the government take care of those expenses before continuing to fund other programs, many of them of dubious constitutionality.

But even if Bartlett’s premise were correct, his legal arguments remind us that he is an economist, and not a lawyer.  Here are his three principal arguments, and the response to each:

Argument #1: The President often must take emergency actions in critical situations, particularly in areas of national security.

Response: This amounts to a claim that because previous Presidents have stretched their power or even violated the Constitution, President Obama can do the same. One is reminded of the juvenile whine, “Aw, Momma, I wasn’t the only one who swiped cigarettes from that store.”

More seriously, this is not some issue in the disputed the boundaries between legislative and executive power.  The principle that only the legislature, not the President, has the power of the purse is at the very heart of the Anglo-American constitutional tradition. It is the product of a centuries’ long struggle for liberty. That’s why the Constitution itself (Article I, Section 8, Clause 2) gives only Congress, not the President, the power “To borrow Money on the credit of the United States.”

The President is now fighting an unconstitutional war in Libya without congressional authorization.  If he also can borrow money on his own authority, it would represent the end of constitutional government as we know it. It would fulfill one of the Founders’ worst nightmares: the power of the sword and the power of the purse in the hands of one man.

Argument #2: “[P]reventing default is no less justified than using American military power to protect against an armed invasion without a congressional declaration of war.”

Response: This is simply wrong. The Constitution’s grant of commander-in-chief power to the President, coupled with the Guarantee Clause of Article IV, Section 4, give him power to respond to sudden attack—while reserving to Congress exclusive power to declare war in other circumstances.  By contrast, the Constitution grants only to Congress the power to borrow money.

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Argument # 3:“[T]he debt limit is statutory law, which is trumped by the Constitution which has a little known provision that relates to this issue. Section 4 of the 14th Amendment says, “The validity of the public debt of the United States…shall not be questioned.”

Response: Barlett deftly omits a crucial part of the quote from the Fourteenth Amendment.  It actually says, “The validity of the public debt of the United States, AUTHORIZED BY LAW . . . shall not be questioned.” In other words, Congress has to approve the debt for it not to be questioned.  And note that this language refers to existing debt, not to creating new debt.  He also neglects to mention that Section 5 of the Fourteen Amendment specifically grants to Congress, not to the President, authority to enforce the amendment.

The suggestion that the President unilaterally can commit America to trillions in new debt is a very good example of how panic can cause people to propose very, very foolish things.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See http://constitution.i2i.org/about/.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute. Visit his blog there at http://constitution.i2i.org/