With all due respect to Jack Balkin, who is a fine scholar, the new claim that the debt ceiling might be unconstitutional under Section IV of the 14th Amendment ("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.") strikes me as akin to the right-wing's novel commerce clause claim against the individual mandate. That is, the debt ceiling, like the individual mandate, was seen as incontestably constitutional right up until the moment that it became politically expedient for it not to be. At which point, suddenly, controversy! Forgive me for being skeptical of the development.
Now, maybe the debt ceiling is different because -- until now -- nobody had been dumb enough to make a credible threat to actually follow through on defaulting the American economy. So it never came up until now. Desperate times call for desperate measures and all that. Still, I'm very dubious.
This actually strikes me as a better argument if only because, as you mentioned, no one has dealt with this before. In contrast, the commerce clause had so much SC jurisprudence including stuff done very recently in raich. so there is no precedent the court would have to fly in the face of to make that decision.
ReplyDeleteIf I had to come up with an argument for why failure to raise the debt ceiling is unconstitutional, I'd go for a purely textualist reading:
ReplyDeleteThe first sentence of Section IV is what's being debated. It says, "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." This is followed by a second sentence stating, "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."
If we read the first sentence in the context of the second, then we can see a connection between payment and validation of debt. The second sentence asserts that all debts, obligations and claims arising from insurrection and emancipation shall be held void, and that part of that voiding is that they cannot be paid by the U.S. or any State thereof. Payment of these debts and obligations would be in some way legalizing them, and therefore is forbidden.
If we read the first sentence through the lens of the second's logic, the connection between payment and validation of debt perhaps could be inverted, so that nonpayment is connected with invalidation of the debt -- which invalidation is prohibited by the first sentence.