Growing increasingly pessimistic about the prospects for a deal that would raise the debt ceiling, Democratic senators are revisiting a solution to the crisis that rests on a simple proposition: The debt ceiling itself is unconstitutional.
"The validity of the public debt of the United States, authorized by law... shall not be questioned," reads the 14th Amendment.
And they just now figured that out? Convenient timing.
I don't see why the quoted language would render the debt ceiling unconstitutional. The 14th amendment refers to the "public debt" as "authorized by law," which would seem to contemplate a law setting a limit on the amount of debt that is authorized. Next it says that the validity of the debt shall not be questioned. A default doesn't question the validity of the debt. To the contrary, a default acknowledges that the debt is valid, but can't be paid at the moment.
In any case, the article goes on to quote my friend and UCLAW colleague Adam Winkler at length:
Adam Winkler, a law professor at the University of California, Los Angeles, said that the 14th Amendment option has recently been much discussed in the field.
"Without any clear case law about the debt ceiling in particular, no one knows exactly how the courts would rule on that issue, about whether President Obama could ignore the debt ceiling," he said. "If he wanted to continue to service the public debt, he'd probably get away with it."
Which leads to a related question: Who's to stop him?
"To have standing to challenge a governmental action, you must show that you have suffered some injury from that action, and it's hard for someone to show such an injury," Winkler said. "If Congress acted as a unified body, and claims that the president has usurped their authority, then it may have some standing."
"But," he cautioned, "it would have to be a joint resolution. And this Senate would almost certainly block it."