Wednesday, June 29, 2011

Tea Party Dilemma – Constitution or Debt Ceiling?

Kenneth M. O’Brien

The Tea Party ignorati are confronted with a new dilemma.

We all know that they are devoted to a strict interpretation of, and adherence to, the Constitution of the United States,

We also know that they are dead-set against any increase in the current debt ceiling. Never mind that the increase in the debt ceiling is to pay for debts already incurred.

These two virtually religious convictions are turning out to be directly contradictory.

The fourteenth amendment to the U. S. Constitution reads as follow:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

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. 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.

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

Look again at Section 4.  “The validity of the public debt of the United States… shall not be questioned.”

In the case of Perry v. the United States, the Supreme Court decided that Congress did not have the authority to invalidate debts that had been lawfully incurred. Furthermore, the Court decided that the amendment did not apply merely to debts incurred at the time the amendment was passed, but to all subsequent government obligations.

Look at the wording of that decision (Page 294, U. S. 330), “The Constitution gives to the Congress the power to borrow money on the credit of the United States, an unqualified power, a power vital to the government, upon which in an extremity its very life may depend. The binding quality of the promise of the United States is of the essence of the credit which is so pledged. Having this power to authorize the issue of definite obligations for the payment of money borrowed, the Congress has not been vested with authority to alter or destroy those obligations….”

Numerous constitutional authorities have opined that, as a result of this amendment and the precedent set in Perry v. United States, the Congressionally set debt ceiling is, in fact, unconstitutional.  Garret Epps, Professor of Law at the University of Baltimore has gone so far as to say that no one, including Congress, has the legal standing to challenge this.

As a result, the President is in a position to totally ignore the debt ceiling debate and move forward with his agenda. Ultimately it’s a question of political courage in the mode of Franklin Roosevelt.

As far as the Tea Partiers are concerned, they are confronted with having to adhere to the Constitution they supposedly so revere, or their irrational devotion to jeopardizing the full faith and credit of the United States.

Of course their devotion to the Constitution has already proven to be a matter of convenience. Consider their position on birthright citizenship granted under the same amendment.


  1. I'd love to talk with you about this! But you think I'm stupid. And apparently whenever I comment on your blog you delete it anyhow. Bummer.

  2. There is absolutely no contradiction. Not raising the debt limit would have no impact on paying off the debts, it would only impact spending. Revenues are more than sufficient.

    So stop spending

  3. The way I see it this could actually be interpreted as meaning the US would have to prioritize debt service over anything else and the President would be required to act in accordance with that. Assuming cash flow were sufficient to cover the debt service, then that gets paid first. If there's anything left over then the other stuff gets paid. If there's nothing left over then nothing else gets paid. Soldiers? Sorry, debt comes first. If there's sufficient funds to pay for some things, then President needs to prioritize what those are. It basically means shutting down anything else you can't afford and a holy mess. If there's not enough to cover the debt service, then the President would be required to raise sufficient additional money in whatever manner needed. Basically the Republicans would be opening a crap storm the likes of which we've never seen. Overnight you would essentially have to shut down everything except the Treasury and the IRS in order to sort out what could be funded with cash on hand. The extraordinary powers that President Obama would need to exercise should be enough to make any Republican blanch. At the end of the day this is where this brinksmanship is heading.

  4. Look again at Section 4. “The validity of the public debt of the United States… shall not be questioned.”

    You forgot the "authorized by law part".


  5. Boy, Ken was right calling you ignorati. What debts were not "authorized by law", Social Security obligations, Medicare obligations, Medicaid obligations, defense authorizations, budget authorizations, funds authorized by continuing resolutions? Did you go to law school with our town atty.?

  6. John P. FitzgeraldJuly 2, 2011 at 1:43 PM

    Which Town Attorney are you referring to?

    Butch McDonald?

  7. 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.

    Don't forget "authorized by law". That mean approved by Congress.


All comments subject to moderation. All commenters must use their own name or a screen name. No comments labelled as "Anonymous" will be published. To use your name or a screen name select "Name/URL" from the drop down menu. Insert you name in the "Name" space and leave the "URL" space blank.