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Juliette Kayyem

Don’t wave Constitution in debt’s face

Treasury Secretary Timothy Geithner Treasury Secretary Timothy Geithner (Getty Images)
By Juliette Kayyem
Globe Columnist / July 11, 2011

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AT A Senate hearing in May, Treasury Secretary Timothy Geithner held up a copy of the Constitution and read a relatively unknown clause of the 14th Amendment. The Civil War-era provision appeared to give the president - not Congress - the responsibility for making sure all debts incurred by the United States are paid promptly. Geithner’s reading of the clause drew little immediate attention.

But as the government moves closer to its Aug. 2 default deadline, this constitutional provision is sure to get ever-greater attention. It’s an odd clause. After all, the debate over tax hikes, entitlement reform, and lower spending that is currently underway to justify raising the debt ceiling is perfectly suited to our political parties. The weighty Constitution would appear to have nothing to say on the matter.

But the clause, which states “(t)he validity of the public debt of the United States . . . shall not be questioned,’’ has the potential to alter the fiscal debate. More than a few Democrats are suggesting that President Obama can just ignore this whole messy partisan business and order the Treasury to keep paying the debt.

Geithner and others in Obama’s inner circle have understandably wavered on whether the legal route could or should be utilized. That’s because this constitutional “nuclear option” comes, as all nuclear options do, with its own set of assured destructions. It will not solve the credit crisis, only delay it.

Granted, there is something of a just-deserts satisfaction to invoking the Constitution to thwart the budget-cutting goals of the very people who preach strict fidelity to the framers. It has a “Eureka, look here, who knew there was a fourth section of the 14th Amendment?’’ feeling about it. After all, it was the Republicans who insisted on reading the Constitution aloud at the beginning of this congressional session.

They aren’t about to accept Geithner’s interpretation of the clause at face value, but the history behind it bolsters the view that the framers intended to curb Congress’s power to halt debt payments. In the months after the Civil War, Section Four was hotly debated in the context of the reformed union’s obligation to pay its war debts. The clause was intended to minimize a very divided Congress’s role in debt discussions and protect President Lincoln’s promises to cover what was owed in the war, significantly to foreign governments. As Senator Jacob Howard said at the time, debt questions cannot be left to “political squabbling and party wrangling. . . . It is necessary to act. . . . to put it beyond the pale of party controversy, to put it out of sight, and to bury it so deep that it can never again be raised to live. . . ’’

That language did not make it into the Constitution, but the sentiment is there. It certainly suggests that a president need not adhere to whatever number Congress puts on his borrowing power. The debt limit is a mere congressional statute that was instituted to help finance America’s entry into World War I. Why not just borrow and borrow, and pay and pay, as the Constitution apparently allows?

However appealing the 14th Amendment maneuver may be to Democrats who do not want to cede too much to no-new taxes House Republicans, it would be a false solution. Litigation would surely follow (just as surely as some liberal Democrats spent the better part of eight years litigating against President Bush’s simplistic interpretation of his commander-in-chief authority in the “war on terror’’). There has been a debt ceiling for a long time; it has been an accepted part of the political playing field. Courts won’t erase it without hearing a lot of arguments.

Second, it will not end the default drama. More questions than solutions will arise. Some are logistical: Which creditors will the Treasury choose to pay first? Others are economic. If the prime worry in the ongoing debate is that financial markets will be rattled, causing a sharp increase in the government’s borrowing costs, can anyone guarantee that markets won’t be rattled when the inevitable litigation occurs? The mere fact of ignoring the debt ceiling may cause creditors to question our financial stability, regardless of whether we are paying.

The constitutional argument, then, should be invoked not for the power it gives the president, but for underscoring the seriousness of the problem. In the midst of the gravity of the Civil War and ending slavery, the authors of the 14th Amendment felt compelled to address the issue of debt in our founding document itself. It must be paid. It must not be questioned. Anything short of that would not be a solution. It would be assured destruction.

Juliette Kayyem can be reached at jkayyem@globe.com. Follow her on Twitter @juliettekayyem.