As the debate over the debt ceiling rages on, some congressional Democrats have staked out an unprecedented and dangerous position on presidential power. They have encouraged President Joe Biden, if ongoing negotiations with Republican House Speaker Kevin McCarthy fail, to invoke the little-known public debt clause (section four of the 14th Amendment) and thrust aside the federal law that establishes a ceiling on how much the government may borrow.
Sen. John Fetterman, D-Penn., is one such Democrat extremist. He recently tweeted: “This is the whole reason why the 14th Amendment exists, and we need to be prepared to use it. We cannot let these reckless Republicans hold the economy hostage.”
The situation is undoubtedly urgent because if the negotiations between the White House and Congress do not produce a compromise, the federal government risks defaulting on its debt payments — an outcome that would have devastating consequences for the national and global economy, and that would injure the public credit of the United States.
Setting aside the complete absurdity of Fetterman’s claim that “the whole reason why the 14th Amendment exists” was to give the president the power to disregard valid legal limits on the national debt (the main purpose of the amendment was to provide basic civil rights to Americans of every skin color), the good senator is grotesquely wrong.
The public debt clause makes no reference to the president, either explicitly or implicitly. There is no “emergency” presidential authority enabling Biden to spend or borrow money hidden in the section’s interstices. It simply declares that the validity of the national debt shall not be “questioned.” Whether Fetterman realizes it or not, he is invoking the left’s standard — but spurious — conception of the presidency. If Biden listens to Fetterman’s advice, he would lead the country not merely into a financial meltdown (would you buy Biden bonds?), but also into a severe constitutional crisis.
A Clash of Constitutions
In essence, the “progressive” left holds that whenever Congress’s failure to act would result in an unconstitutional condition, the president has the emergency power to act in Congress’s place. Some on the left would go further, claiming that whenever Congress fails to address a matter such as global warming — vitally important, but without constitutional dimensions — the necessity for action enables the president to respond as he sees fit.
This is the Constitution of Necessity. It is utterly unlike the founders’ Constitution. As Supreme Court Justice Neil Gorsuch explains, the founders’ Constitution deliberately requires that the president and Congress, working together, succeed in “assembl[ing] a social consensus before choosing our nation’s course on policy questions.” Deciding how much to spend, tax, and borrow are policy questions that require such a consensus before the government can act. Without the agreement of Congress, the result must be governmental inaction, even if inaction leads to a constitutional violation. Failure to act does not activate a latent “emergency” presidential power to prevent that result.
So, if the Constitution prohibits the federal government from defaulting on its debt, but the president and Congress cannot agree on how to meet that obligation, the president by himself can do nothing to avert the default — crisis or not.
Left’s Conception of Presidential Power
The contrary, leftist conception of presidential power has been widely held since our first progressive president, Theodore Roosevelt, more than a century ago. In his autobiography (1913), Roosevelt wrote:
My belief was that it was not only [the president’s] right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws. … I acted for the public welfare, I acted for the common well-being of all our people, whenever and in whatever manner was necessary, unless prevented by direct constitutional or legislative prohibition.
The same conception of presidential power underlies many recent constitutional debates, such as the controversy in 2016 over President Barack Obama’s nomination of then-Judge Merrick Garland to the Supreme Court.
The Constitution’s appointments clause requires that before a nominee can be appointed as a Supreme Court justice, he or she must be confirmed by the Senate. Under the leadership of Republican Majority Leader Mitch McConnell, the Senate declined to take up Garland’s nomination, neither confirming nor rejecting him.
Faced with such inaction, some of Obama’s advisers urged him to bypass the Senate and appoint Garland to the court unilaterally. Their theory was that the Senate’s failure to act on the nomination was creating an emergency, or perhaps even a constitutional violation (since with only eight justices, the court might be unable to decide crucial cases). In that situation, they argued, the president had the power, even the duty, to forge ahead on his own. To his credit, Obama did not heed that advice.
The appointments clause does not contain some long-hidden power enabling the president to bypass the Senate and install a nominee, even if the clause were understood to require prompt Senate action on the nomination (which it does not). If the Senate breaches that assumed constitutional obligation, the president cannot take the matter into his own hands. Nor could the Supreme Court order the Senate to vote a nominee up or down. The Senate is the master of its own procedures. It can delay acting on a nomination for as long as it pleases. (Likewise, it can delay acting on treaties indefinitely: it took about 40 years for the Senate to ratify the Genocide Convention.) That is simply how our Constitution works: these bucks stop at the Senate.
Congress’s Power Alone
Back to the debt ceiling. The powers to raise revenues, spend money, and incur or limit debt are given to Congress — and to Congress alone. The Constitution also forbids the president from withdrawing any funds from the Treasury without a statutory appropriation permitting such a withdrawal.
Elsewhere, however, the Constitution directly places certain funding obligations on Congress — notably, to pay a salary to the president and the justices of the Supreme Court. Suppose Congress decides not to fund those salaries. That failure would be an unconstitutional breach of duty on Congress’s part. But does the president have the implied constitutional authority to pay those salaries on his own? He does not; he cannot withdraw Treasury funds without an appropriation. The constitutional violation has no remedy unless Congress itself acts.
Now consider the 14th Amendment again. The public debt clause affirms that the validity of the lawful federal debt “shall not be questioned.” The historical evidence indicates that this language had a limited purpose: to prevent Congress from directly repudiating the debt. Congress did not transgress that limit by enacting the debt ceiling; nor would it violate the public debt clause by failing to prevent a default. (The debt would not be invalidated, but payment would be in arrears.)
But let’s assume that by not preventing a default, Congress would be delinquent in performing a constitutional obligation. Does that failure (or its imminence) trigger an emergency presidential power to avert the default? No. Congress may be causing a constitutional violation (though the president would share the blame for it). But only Congress, not the president, can repair that breach.
That is simply how the founders’ Constitution works.
Dangers of a Constitution of Necessity
The Constitution of Necessity is not only fake; it is dangerous. In fact, it invites a dictatorship — rule by emergency decrees, whenever the president believes that Congress has neglected a constitutional duty (or just failed to act when it should).
The president could pick justices, judges, and key executive officials whenever he thought the Senate did not act on his nominees with sufficient alacrity. Likewise, he could bring treaties into effect if the Senate delayed considering them. He could raise taxes or spending on his own if he thought Congress was not appropriating enough to meet national defense needs. He could shutter power plants if he thought congressional inaction on his green agenda was imperiling the nation’s environment.
Far-fetched? No. This is the DNA of the left’s Constitution. No wonder they love an “emergency.”
Robert J. Delahunty is a Washington Fellow of the Claremont Institute Center for the American Way of Life. His new book, The Politically Incorrect Guide to the Supreme Court, co-authored with John Yoo, will be published by Regnery on June 27.
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