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There is a line in the constitution that says "The validity of the public debt of the United States, ... shall not be questioned." Some interpret this to imply

There is a line in the constitution that says "The validity of the public debt of the United States, ... shall not be questioned." Some interpret this to imply that the courts could intervene in any case where legislative action would cause the US to fail to pay any existing debt. I think it's uncertain though, and I am curious what people more familiar with consitutional law think about this.

teddyh 4y ago
https://tailsteak.com/archive.php?num=264 https://tailsteak.com/archive.php?num=264
dragonwriter 4y ago
The more common interpretation is not that the courts could intervene (they clearly can’t unilaterally, and standing would be a problem for anyone trying to seek to have them intervene, though maybe a creditor denied payment would have it), but that the executive could take any action that would be legal without the debt ceiling to continue paying the debt, and that, even should any entity with standing challenge this in the courts (Congress, as a whole, may be the only body that would even have standing), that provision would be a reason that they would fail on the merits.
- mgraczyk 4y ago
  Thanks for the explanation!
- snowwrestler 4y ago
  To believe the law works this way, one would have to believe that the Congress and President have been putting themselves through pointless kabuki theater for decades by passing and signing into law increases in the debt limit that were not actually required. No one actually thinks this. Just like no one actually thinks that we just discovered that the wording of the 14th Amendment is a magical solution to a debt limit fight. The funny thing is that IF the Constitution actually did work this way, it would remove any leverage the debt limit holds over policy. So some folks are trying to have their cake and eat it too. They demand policy changes in return for a debt limit raise, while also claiming, separately, that neglecting to raise the debt limit is no big deal because 14th Amendment. It makes no logical sense. And it’s not supposed to; it is just supposed to sound plausible, in parts, to different audiences.
  - dragonwriter 4y ago
    > To believe the law works this way, one would have to believe that the Congress and President have been putting themselves through pointless kabuki theater for decades by passing and signing into law increases in the debt limit that were not actually required. So? Wouldn’t be the first time that routine government practices were found to be unnecessary or invalid because they were premised on a faulty view of the Constitutional powers of some institution of government. > No one actually thinks this. Lots of people actually think this. > Just like no one actually thinks that we just discovered that the wording of the 14th Amendment is a magical solution to a debt limit fight. That’s true, its not a recent opinion. Just as the opinions that the War Powers Act is unconstitutional (there are two different major ones, as to whether it unconstitutionally limits inherent executive power or unconstitutionally delegates non-delegable Congressional powers) is as old as the War Powers Act, the opinion that the debt ceiling is unconstitutional is nearly as old as the debt ceiling.
    - snowwrestler 4y ago
      The fact that we, as a nation, are still talking about the debt limit is proof that no one with any authority actually believes this theory. If everyone agrees a gun is not loaded, no one cares who is holding it or where it is pointed.
      - dragonwriter 4y ago
        > The fact that we, as a nation, are still talking about the debt limit is proof that no one with any authority actually believes this theory. No, its proof that no one has thought that it the best choice given the then-current political situation was to test it. Given that Executive/Congressional relations rely on working relationships, and that a successful challenge (by the Executive, Congress would never be the party to challenge) rather than making a deal where it is possible has the potential to poison that relationship and sink a President’s legislative agenda, there is a strong incentive not topush the issue, irrespective of the merits, except in the worst conceivable pre-existing relation between a President and a faction holding the power to obstruct debt limit increases in at least one house. (This is a similar reason to why you see adherence to the War Powers Act even by administrations that have characterized it as an unconstitutional usurpation of inherent executive power on the part of Congress, that has only the legal effect – where it facially limits the President – of a non-binding request by Congress.)

teddyh 4y ago

https://tailsteak.com/archive.php?num=264 https://tailsteak.com/archive.php?num=264

dragonwriter 4y ago

The more common interpretation is not that the courts could intervene (they clearly can’t unilaterally, and standing would be a problem for anyone trying to seek to have them intervene, though maybe a creditor denied payment would have it), but that the executive could take any action that would be legal without the debt ceiling to continue paying the debt, and that, even should any entity with standing challenge this in the courts (Congress, as a whole, may be the only body that would even have standing), that provision would be a reason that they would fail on the merits.

mgraczyk 4y ago
Thanks for the explanation!
snowwrestler 4y ago
To believe the law works this way, one would have to believe that the Congress and President have been putting themselves through pointless kabuki theater for decades by passing and signing into law increases in the debt limit that were not actually required. No one actually thinks this. Just like no one actually thinks that we just discovered that the wording of the 14th Amendment is a magical solution to a debt limit fight. The funny thing is that IF the Constitution actually did work this way, it would remove any leverage the debt limit holds over policy. So some folks are trying to have their cake and eat it too. They demand policy changes in return for a debt limit raise, while also claiming, separately, that neglecting to raise the debt limit is no big deal because 14th Amendment. It makes no logical sense. And it’s not supposed to; it is just supposed to sound plausible, in parts, to different audiences.
- dragonwriter 4y ago
  > To believe the law works this way, one would have to believe that the Congress and President have been putting themselves through pointless kabuki theater for decades by passing and signing into law increases in the debt limit that were not actually required. So? Wouldn’t be the first time that routine government practices were found to be unnecessary or invalid because they were premised on a faulty view of the Constitutional powers of some institution of government. > No one actually thinks this. Lots of people actually think this. > Just like no one actually thinks that we just discovered that the wording of the 14th Amendment is a magical solution to a debt limit fight. That’s true, its not a recent opinion. Just as the opinions that the War Powers Act is unconstitutional (there are two different major ones, as to whether it unconstitutionally limits inherent executive power or unconstitutionally delegates non-delegable Congressional powers) is as old as the War Powers Act, the opinion that the debt ceiling is unconstitutional is nearly as old as the debt ceiling.
  - snowwrestler 4y ago
    The fact that we, as a nation, are still talking about the debt limit is proof that no one with any authority actually believes this theory. If everyone agrees a gun is not loaded, no one cares who is holding it or where it is pointed.
    - dragonwriter 4y ago
      > The fact that we, as a nation, are still talking about the debt limit is proof that no one with any authority actually believes this theory. No, its proof that no one has thought that it the best choice given the then-current political situation was to test it. Given that Executive/Congressional relations rely on working relationships, and that a successful challenge (by the Executive, Congress would never be the party to challenge) rather than making a deal where it is possible has the potential to poison that relationship and sink a President’s legislative agenda, there is a strong incentive not topush the issue, irrespective of the merits, except in the worst conceivable pre-existing relation between a President and a faction holding the power to obstruct debt limit increases in at least one house. (This is a similar reason to why you see adherence to the War Powers Act even by administrations that have characterized it as an unconstitutional usurpation of inherent executive power on the part of Congress, that has only the legal effect – where it facially limits the President – of a non-binding request by Congress.)