The PJ Tatler

The President Has No Authority to Increase the Debt Limit Unilaterally

According to an op ed piece in the New York Times linked in this Tatler article, the President can unilaterally increase the national debt limit if the Congress fails to do so. The Tatler article very properly takes issue with the authors of that piece.  I should like to take issue with them based on what the Constitution actually says and does not say.

The learned constitutional scholars cite only one provision of the Constitution, the Fourteenth Amendment, as possibly authorizing the President to raise the debt limit unilaterally; that provision even they characterize as a red herring and further note that

Commentators pointed out that the language in the 14th Amendment, which commands that the validity of legally authorized public debt shall not be questioned, does not explicitly authorize the president to do anything.

I attempted to deal with the Fourteenth Amendment argument here and suggested that it makes no sense.

Here are the relevant provisions of the Fourteenth Amendment:

Section 4. 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. . . .

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. (emphasis added)

The authors of the op ed piece contend that even without reference to the Fourteenth Amendment, the President would have the inherent power to raise the debt limit unilaterally should the Congress fail to do so. The thrust of their argument seems to be that a President’s gotta do what a President’s gotta do. They contend,

Our argument is not based on some obscure provision of the 14th amendment, but on the necessities of state, and on the president’s role as the ultimate guardian of the constitutional order, charged with taking care that the laws be faithfully executed.

Article II of the Constitution defines the powers of the President.  The closest it comes to what the authors suggest is in Section I, and it comes not even close:  “The executive Power shall be vested in a President of the United States of America.” That neither makes the President the ultimate guardian of constitutional order nor authorizes him to take over the functions of the Congress or, for that matter, of the Supreme Court.

Beyond their “a President’s gotta what a President’s gotta do” thesis,  the authors point to nothing in Article II as supportive of their thesis.  Article II could have granted the President extraordinary power to raise the debt limit unilaterally; it did not.  The Constitution could have been amended to grant him that power; it has not been.

Nor do the authors mention the explicit provision of Section 8 of Article I (which defines the powers of the Congress) as follows:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States . . . . (emphasis added)

An increase in the debt limit is, by definition, an authorization to borrow money, a power given to the Congress to grant and not to the President to create in the absence of legislation authorizing it.

An outright violation of the Constitution in an effort to “save it” — as the authors appear to suggest would be acceptable — would be a perversion. The President, as the Executive, has defined powers and they include executing the laws. There is no constitutional provision or law requiring that the debt limit be increased and the President cannot fabricate one.

Among other things, Section 1 of Article II provides,

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—”I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” (emphasis added)

I fail to see how the President can “defend the Constitution” while usurping the powers of the Congress under it to engorge his own.  An outright violation of the Constitution in an effort to “save it” would be a perversion.