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Impending Default, the Public Debt Clause, and the Odd Clauses

Jay Wexler is the author of The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions. Wexler is a professor at the Boston University School of Law; prior to teaching he worked as a clerk to Justice Ruth Bader Ginsburg at the U.S. Supreme Court, and then as a lawyer in the Office of Legal Council at the Department of Justice. He has published nearly twenty academic articles, essays, and reviews, as well as nearly three dozen short stories and humor pieces, in places like The Boston Globe, Spy, Mental Floss and McSweeney's. This post originally appeared on his blog.

Listen to Jay Wexler on the Brian Lehrer Show


If you’ve been following the news lately, you know that the U.S. government is heading toward defaulting on its public debt by the August 2nd unless something happens, like Congress raises the 14.3 trillion dollar debt limit that it has imposed on executive  branch borrowing. In the past week or so, there’s been a lot of hubbub in the blogosphere and elsewhere about whether section 4 of the 14th Amendment would allow President Obama to ignore the debt limit and issue new debt to pay the old debt, thus avoiding default, which everyone seems to agree would be catastrophic for the world’s economy. The Public Debt Clause 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.” I am talking about this issue today (at 11:25 am) on WNYC and won’t go much into the substance of the issue here (I’ll post a link to the interview if one becomes available UPDATE: click here to listen), except to say that I don’t think this provision gives the President any authority to issue new debt above the debt limit, because it is not a grant of power to the President. The only grant of power in the Constitution regarding debt is in Article I, section 8, which gives Congress the authority to borrow money on the credit of the United States. Congress has delegated that power to the President, but consistent with its authority, it has also cabined that delegation through the debt limit. The President has no independent authority to exercise power beyond the limits of Congress’s initial delegation. If you’re interested in the merits of the issue, I’d start with this post and the links in there, and then you might also check out this or this post and those links.

Myself, I’m fascinated by the hubbub here more than the substance of the hubbub because it goes directly to why I wrote The Odd Clauses in the first place. I wrote the book to point out that although we talk about the Constitution a lot in the United States, we usually talk only about a few of the big time clauses like the First Amendment or Fourth Amendment or the Equal Protection Clause, while in fact the document is filled with all sorts of things that rarely if ever get talked about, at least until there’s some issue that comes up once in a decade or century that makes us wonder what the Constitution has to say about it. This happened recently with the hullabaloo over whether the President could sign the Patriot Act extension with an autopen, and here we have the phenomenon happening again, this time with even higher stakes. The Constitution is a fascinating document for all sorts of reasons, and we can only understand it by paying attention to all of its various seemingly obscure and even just plain weird, but (as this dispute shows) incredibly important provisions. Nearly nobody had mentioned the Public Debt Clause for about 140 years until about a week ago, and now it’s the center of constitutional argument in the United States. Next week (or the week after, or on August 3, but soon), most likely, it will fall silent again. But who knows, maybe September will witness some other odd clause’s resurgence.  If so, Odd Clauses Watch will be there.  Because I’m always there for you. I love you.

Ahem, sorry. By the way, read that Public Debt Clause again. Notice how it’s written in the passive voice. “Shall not be questioned.” What in the world does that mean? What if I right here say “I question our public debt”? Have I violated the Constitution? Boy I hope not. But what a weird way to write a constitutional provision! I question our public debt, I question our public debt, I question our public . . . [enough]

Here’s another thing I’ve been wondering. In the book, I analogize many of the odd clauses I write about to odd animals. In other words, maybe the First Amendment is a lion, and the Fourth Amendment is a grizzly bear, but the Letters of Marque and Reprisal Clause is like an Egyptian Plover (because, like the plover, who eats bits of food out of a crocodile’s teeth, the M & R Clause is really interesting because of its relationship to another part of the Constitution–the Declare War Clause–rather than being interesting for itself). Or the Third Amendment is a potential coelocanth (a prehistoric fish that scientists thought was extinct until they found one in 1938) because although right now it does nothing, maybe one day it will suddenly be found again and prove to be important. So, anyway, if the Public Debt Clause were an animal, what animal would it be?  I’m not sure. Love to hear your thoughts though.