The validity of the public debt of the United States, authorized by law … shall not be questioned.–Fourteenth Amendment
In an opinion article in The New York Times, Michael W. McConnell, a senior fellow at the right-leaning Hoover Institution, argues that the Fourth Amendment can’t be used to prevent default, in case of no timely action to raise the debt ceiling.
He claims:
- Default is permissible, whatever the consequences, because the debt would remain valid, even if not serviced as required.
- Bond’s issued in excess of the debt limit not otherwise authorized by Congress would be invalid.
McConnell’s argument depends on the meaning of validity. After the Civil war, validity meant that lenders would be repaid. It probably means that today. It isn’t clear if valid means lenders must be repaid on time.
McConnell says the President must negotiate with Congress. This isn’t in the spirit of The Constitution which makes Congress solely responsible for making laws and the President responsible for executing them. The Constitution is silent on the possibility of inconsistent laws or laws that can’t be executed.
McConnell implicitly disparages debt by favoring limits over solutions which don’t limit spending. He doesn’t say if recent appropriations supersede the debt limit law, which is an argument for disregarding it. Nor does he mention the claim that observing the debt limit would require the President to break other laws.
McConnell’s overall argument depends on cherry picking–putting forth reasons in support of his opinion and disregarding the opinions of those who disagree. On one point most do agree–the best outcome is for Congress to vote to raise the debt limit.
McConnell predicts disregarding the debt limit based on the Fourteenth Amendment would have consequences as dire as default. On this he may be right, which is one reason other outcomes are preferable.
McConnell is a professor and the director of the Constitutional Law Center at Stanford Law School and a senior fellow at the Hoover Institution. He was a judge on the U.S. Court of Appeals for the 10th Circuit from 2002 to 2009.
New NY 23rd 
Not resolving raising the looming debt ceiling quickly could have very bad ramificacións on the stock market and eventually the economy.
This would not be helpful to anyone or the government.
It would only be helpful to Republicans trying to win elections in 2024.
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Gary, I don’t think Republicans, particularly the dissidents among them in the House, would benefit from an economic disaster. They didn’t benefit from threats of government shutdown in 2013. I trust most Republicans wouldn’t disrupt the economy seeking political advantage.
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A professor made the claim that a debt is “valid” if it goes unpaid? That is idiotic. Following that logic I need not pay my mortgage again in my lifetime and the bank can do nothing about it. The unpaid debt would still be “valid”. Makes no sense.
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I agree, Joseph; the argument is strange if not idiotic. Here is what the professor wrote:
For the United States to fail to pay interest or principal on its debt would be financially catastrophic, but it would not affect the validity of the debt. When borrowers fail to make payments on lawfully incurred debt, this does not question the validity of those debts; their debts are just as valid as before. The borrowers are just in default.
Your banker may have a different opinion, Joseph.
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There was an excellent article destroying McConnell’s faulty logic, but I can’t find it. However, you did just fine!
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Thanks, Anne.
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