[For the President to pay the national debt, regardless of the
debt ceiling, would not be disobeying the Constitution—it would be
obeying it and insisting that doing so supersedes the intervention of
any other branch.]
[[link removed]]

OBEY THE CONSTITUTION (BEFORE THE SUPREME COURT)  
[[link removed]]


 

Garrett Epps
May 8, 2023
Washington Monthly
[[link removed]]


*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

_ For the President to pay the national debt, regardless of the debt
ceiling, would not be disobeying the Constitution—it would be
obeying it and insisting that doing so supersedes the intervention of
any other branch. _

Joe Biden, Gage Skidmore (CC BY-SA 2.O)

 

John Perry, a wealthy patriot, boosted the American war effort in 1918
by subscribing to the Fourth Liberty Loan. For $10,000, he bought a
bond payable in 1934 “in United States gold coin of the present
standard of value.” By Perry’s calculation of the price of gold,
that meant that in 1934 he was entitled to a payback in the value of
$16,931.25.  

Unfortunately for Perry, U.S. dollars were no longer backed by gold in
1934, and there were no legal gold coins. Among the effects of the
Great Depression was radical _deflation—_as money got scarcer,
those who still had dollars could buy more goods and services than
before the crash. So, on June 5, 1933, Congress passed a Joint
Resolution declaring such “gold clauses” invalid. Congress
resolved that from 1933 on, “gold clause” or not, U.S. bonds were
repayable only by legal tender. Perry thus would get $10,000 in paper
money.  

Perry did what any self-respecting wealthy patriot would do when his
country is in extremis—he sued the government. When his case reached
the Court, an opinion by Chief Justice Charles Evans Hughes stated
that, sure enough, the government was obliged to pay the bond: 

The Fourteenth Amendment, in its fourth section, explicitly declares:
‘The validity of the public debt of the United States, authorized by
law, * * * shall not be questioned.’ . . . We regard it as
confirmatory of a fundamental principle which applies as well to the
government bonds in question, and to others duly authorized by the
Congress, as to those issued before the amendment was adopted. Nor can
we perceive any reason for not considering the expression ‘the
validity of the public debt’ as embracing whatever concerns the
integrity of the public obligations. 

Great news for Perry—except that the Court then went on to hold that
the debt owed Perry was, in fact, payable in 1934 paper dollars, not
the value it would have in gold coins. Legal tender is legal tender,
and gold wasn’t it anymore. 

We can draw two lessons from this now-obscure case. From the opinion,
we glean that, even seven decades after the enactment of the
Fourteenth Amendment, its requirement that the public debt “not be
questioned” bound the government in all its obligations.  

From the larger circumstances of the case, however, we can glean
another. As constitutional historian Gerard Magliocca laid out in a
fascinating 2012 article
[[link removed]], a
contrary decision by the Court—requiring repayment in the value of
gold—might have been a near-death experience for the Court and the
Constitution. That’s because President Franklin Roosevelt, convinced
that returning to the gold standard would plunge the economy even
further into depression, had already determined that he would not
follow a Supreme Court decision reaffirming the gold clause.  

Roosevelt and his staff had prepared a “fireside chat” script that
would have said, “To stand idly by and to permit the decision of the
Supreme Court to be carried through to its logical, inescapable
conclusion would so imperil the economic and political security of
this nation that the legislative and executive officers of the
Government must look beyond the narrow letter of contractual
obligations, so that they may sustain the substance of the promise
originally made in accord with the actual intention of the parties.”
In effect, he said that however the courts read the Constitution, a
conscientious president would not carry through any decision that
would wreck the nation.  

As the clock ticks off the remaining minutes before the United States
suffers a politically engineered default on its debt, I desperately
hope that the Biden administration has learned both lessons
of _Perry. _First, default on the debt (which would occur if
Congress does not raise the “debt ceiling” provided by statute) is
flatly forbidden by the Constitution. Second, a President must
sometimes contemplate defying the other branches to save the country
from disaster.  

I have been writing about the debt ceiling for the past 12 years, and
my position, once dismissed as a fringe theory, has now gone
mainstream. (Just this week, the redoubtable Laurence Tribe of
Harvard, who scorned the argument
[[link removed]] in
2011, has clambered aboard the anti-repudiation bandwagon
[[link removed]]. I am now
awaiting an apology from former Representative Barney Frank, who in
2011 accused me of believing Elvis is still alive.) For those who just
tuned in, I’ll explain quickly: the interest due on U.S. bonds does
not come from new spending but from money already appropriated by
Congress and spent by the executive branch. Failure to raise the
“debt ceiling” will not reduce the national debt by one penny; it
will force a default on existing debt, the first ever. That will, in
turn, decimate the credit of the U.S. government, tank the domestic
economy, boost interest rates worldwide as investors demand guarantees
against future defaults, and, because the dollar is the world’s
reserve currency, spark a worldwide financial crisis like that of 2008
and even perhaps a downturn like that of the 1930s. It will also
violate Section Four of the Fourteenth Amendment, which (as
the _Perry _Court noted) provides that “The validity of the public
debt of the United States, authorized by law, . . . shall not be
questioned.” 

If, that is, the president obeys the debt ceiling. I hope that he is
following Roosevelt’s example—that the executive order setting it
aside has already been written for signature if needed, along with a
speech explaining it to the nation. Congressional
fecklessness—caused by an extreme Republican caucus with the
slimmest majority in only one house—cannot supersede the
Constitution. The case for presidential authority in the face of
actual default is much stronger than Roosevelt’s would have been.
Biden has a constitutional text he can cite.  

In the current case, there’s some reason to hope that the Supreme
Court would choose to stay out of any dispute over the lawfulness of
repaying the debt. To begin with, who would have what the courts call
“standing to sue”? Standing is supposed to arise from an “injury
in fact,” meaning some harm the challenged action is having that is
particular to this particular plaintiff or plaintiffs. “I don’t
agree with this,” “I think it’s unconstitutional,” or even
“Let’s go, Brandon!” are not supposed to be enough to generate
standing.  

But as with so much else, all bets are off in the aggressive
post-Trump Supreme Court. The majority has shown that “standing”
can be manufactured when they don’t like something the government is
doing. In _West Virginia v. Environmental Protection Agency, _the
climate policy case, red states were allowed to challenge a 2015
climate policy that had never gone into effect and could not ever go
into effect because of changes in the energy industry. (The majority
reasoned that those sneaky bureaucrats at the EPA might at some point
start to think about doing something in some way similar, so the case
was on.) In a current case pending this term, _303 Creative v.
Elenis, _the Court has permitted a Christian web designer to
challenge a state civil rights law on the grounds that, at some point,
she might decide to offer wedding website design services. If she did
decide to offer them, a same-sex couple might ask her to do one, and
if they did ask her, and if she refused because designing pages for
same-sex couples would violate her faith, and if the law were then
applied to her, this would provide an injury. So, it is quite possible
the conservative supermajority could decide that Brandon needed a good
slap across the face and thus manufacture standing for some red state
attorney general or right-wing advocacy group to challenge Biden’s
upholding the full faith and credit of the United States.  

That brings us to the next somber contingency: The rise of Republican
extremists is forcing the nation into a crisis not paralleled at least
since 1937. If the Court becomes a party to this high crime, Biden
should be prepared to defy its order to default.  

Those are foreboding words to type. For someone like me who has spent
a career studying the workings of the Constitution, contemplating a
step outside it is a bit like trying to imagine one’s own death.
Would one, in good conscience, advise a president in this situation to
refuse to obey the Court?  

I discussed the question in general terms with Louis Michael Seidman,
the Carmack Waterhouse Professor of Law at Georgetown Law Center. In
2013, Seidman published a small book, _On Constitutional
Disobedience_
[[link removed]],
which steps outside the ordinary framework and assesses the argument
for and against regarding the Constitution as binding on present-day
actors. Seidman didn’t offer any opinion on my Section 4 theory. But
for a president who agrees with me, paying the debt would not be
disobeying the Constitution—it would be obeying it and insisting
that doing so supersedes the intervention of any other branch. “If
you believe in obeying the Constitution,” he said, “obeying the
Supreme Court might be constitutional disobedience.”  

_Follow Garrett on Twitter @ProfEpps [[link removed]].
Garrett Epps [[link removed]] is
legal affairs editor of the Washington Monthly. He has taught
constitutional law at American University, the University of
Baltimore, Boston College, Duke, and the University of Oregon. He is
the author of American Epic: Reading the U.S. Constitution._

_The Washington Monthly [[link removed]] was
founded in 1969 on the notion that a handful of plucky young writers
and editors, armed with an honest desire to make government work and a
willingness to ask uncomfortable questions, could tell the story of
what really matters in Washington better than a roomful of Beltway
insiders at a Georgetown dinner party. In our cluttered little
downtown DC office, we’re still doing what we have done for more
than 50 years, and what fewer and fewer publications do today:
telling fascinating, deeply reported stories about the ideas and
characters that animate America’s government._

*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

 

 

 

INTERPRET THE WORLD AND CHANGE IT

 

 

Submit via web
[[link removed]]

Submit via email
Frequently asked questions
[[link removed]]

Manage subscription
[[link removed]]

Visit xxxxxx.org
[[link removed]]

Twitter [[link removed]]

Facebook [[link removed]]

 




[link removed]

To unsubscribe, click the following link:
[link removed]