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.
