Who Says the President Should "Invoke" the Fourteenth Amendment?

by Michael C. Dorf

The approach of debt ceiling doomsday has provided Professor Buchanan and me with further opportunities to elaborate on our "least unconstitutional option" approach. We are making some new points, but much of what we have to say now simply aims to clarify or popularize our prior academic writing--as in my recent op-ed in The Boston Globe. Today's essay will do a little of both: (1)  clarify a prior point; and (2) offer a set of new observations.

In addition to our own new writings, we find that journalists have also taken an interest in our work. Sometimes they do so without contacting us, as Jamelle Bouie did, citing us in this excellent January 20 essay in the NY Times. Other journalists may cite our prior work but also wish to talk to one of us, as reporter Jeff Stein did for this Washington Post article over the past weekend. I was very grateful to Mr. Stein for giving me the opportunity, after we talked, to review and edit the quotations he attributed to me based on our conversation.

I was also grateful to Mr. Stein for really understanding our position. Often when I talk to reporters, I must spend some substantial portion of the conversation explaining how the Buchanan/Dorf view differs from others with which they have conflated it. One of the most common assumptions I must dislodge in these discussions is that the Buchanan/Dorf position would have the President "invoke the Fourteenth Amendment."

Here I'll explain what's wrong with that assumption. I'll then turn to my new observations--involving others who are actually invoking the Fourteenth Amendment.

(1) Explanation/Clarification

When reporters or pundits ask about invoking the Fourteenth Amendment, they have in mind an argument that goes something like this: If the government exhausts so-called extraordinary measures before Congress raises the debt ceiling, the President should announce to the world that failure to pay all of the government's bills would be to "question" "[t]he validity of the public debt of the United States, authorized by law," in violation of Section 4 of the Fourteenth Amendment. Thus, he should further announce that in these circumstances the debt ceiling is unconstitutional (insofar as it leads to such impermissible questioning) and will therefore be ignored.

It's not so much that I disagree with the foregoing argument; I think it's probably right. However, it's not essential to the Buchanan/Dorf "least unconstitutional option" idea. Put differently, we would say that if Congress fails to raise the debt ceiling in time, the President would be obligated to borrow in excess of it, even if the Constitution contained nothing like Section 4 of the Fourteenth Amendment.

To rehash a point I have already rehashed too many times, our argument relies on separation of powers. Reaching the debt ceiling means that Congress has presented the President with three laws (or sets of laws) with which he cannot simultaneously comply: (1) Spend amount X. (2) Tax amount Y. (3) Borrow no more than Z, where X > Y + Z. Adjusting X, Y, or Z would be a Presidential usurpation of congressional power over spending, taxation, or borrowing, respectively. Thus, there's a trilemma in which any of the realistic options is a violation of separation of powers. Adjusting X or Y would usurp a whole lot of legislative-style discretionary judgment. What spending should be suspended? When? Whose taxes should be raised? By how much. By contrast, borrowing more than Z is precisely determined by Congress's other imperatives. How much more than Z should the President borrow? Exactly the shortfall between X and current revenues. So borrowing more than Z in just the amount determined by the revenue and spending laws is the least unconstitutional option.

See. The Fourteenth Amendment plays no role in the argument.

Meanwhile, there's another--at least stylistic--objection to the notion that the President should "invoke" the Fourteenth Amendment, as though it were a kind of magic talisman: like Harry Potter summoning his Patronus or, equally fancifully and more ridiculously, Michael Scott declaring bankruptcy.

Yes, there are some circumstances in which one must invoke a constitutional provision for it to operate. A person held in custody and read their Miranda warnings needs to assert their right to silence or to an attorney for interrogation to cease (or, if it doesn't cease despite the assertion, for the resulting statements to be inadmissible in a subsequent prosecution). However, as a general matter, if some provision of the Constitution empowers the President to act in a certain way or forbids him from acting in some other way, that's simply true. The President doesn't need to "invoke" the provision for it to operate.

(2) New Observations

As I noted above, although the Buchanan/Dorf approach does not in any way depend on the Fourteenth Amendment, we don't disagree with the Fourteenth Amendment argument. I would offer as a friendly piece of advice to the people who make that argument that they banish talk of "invoking" the Amendment.

Meanwhile, it turns out that some people who reach a quite different conclusion do seem to be making an invocation-style argument. Which people? The prioritization crowd, that's who.

Last week on the blog, Professor Buchanan offered multiple critiques of the proposal--which embodies what passes for conventional wisdom for an unprecedented disaster--that in a debt-ceiling crisis the President should/would "prioritize" some legally obligatory spending over other legally obligatory spending. To be clear, the spending to be prioritized would be for debt service. Thus, to be even clearer, the proponents of prioritizing are saying that the government should pay all bondholders (including individuals, hedge funds, the Chinese government, and the Saudi sovereign wealth fund) while stiffing the likes of military service members owed salaries, Social Security recipients, and hospitals owed money for providing service to Medicare patients.

As Professor Buchanan explained, prioritization would present a special problem of timing. Suppose on Day n of the crisis, the government receives in tax revenues $1 billion, debt service amounts to $500 million, and all other obligations total another $1 billion. A day-by-day debt service prioritization would have the government pay the full $500 million in debt service and then have the President exercise unbounded discretion to decide which half of the government's other outstanding bills to pay. That's bad enough, but the prioritizers actually want to do something more. If they anticipate that on Day n+1 there will be another $1 billion in tax revenues but now another $1.5 billion in debt service coming due (perhaps because of the maturity dates of certain bonds), the prioritizers would have the government stiff all of the non-debt-service obligees on Day n so that the money is available to pay the debt service on Day n+1.

Here's how Professor Buchanan characterized what this means: "The government would be lying to the people who hold legally enforceable obligations, saying to them: 'Sorry, we don't have enough money to pay you,' when in fact it does have enough money to pay the people with legitimate and immediate claims on those funds.""Prioritization" means that the government would be giving higher priority to anticipated future debt service than to other kinds of current payments that are due now.

What could possibly justify that? The prioritizers, it seems, would need to invoke the Fourteenth Amendment. Whereas under the Buchanan/Dorf approach, no one who should be paid gets stiffed--and thus if the courts applied standing rules honestly, no one could challenge the beyond-ceiling debt the government issues--prioritization would instantly give rise to lawsuits by the people and institutions whose payments are deprioritized relative to bondholders. At that point, the government would invoke the Fourteenth Amendment as a defense.

Invocation actually makes sense in this context, because legal theories not pleaded are lost--so the prioritizing government would actually be invoking the Fourteenth Amendment. But while it makes procedural sense, it's wrong on the law.

First, the invocation works only if Section 4 of the Fourteenth Amendment is given a very narrow reading--one in which it obligates the government to pay principal and interest on time to bondholders but not to pay other obligations. That's inconsistent with both the letter and spirit of the one Supreme Court case that construes Section 4, Perry v. United States.

But even if we assume arguendo that the prioritizing invokers are correct about Section 4, their position is still wrong, because it still requires a violation of separation of powers--namely, the assumption by the President, without anything resembling a delegation by Congress, much less a clear statement or intelligible principle, of legislative discretion to decide which legally obligatory payments to make and which to withhold.

Now you might say in defense of the prioritizers that they're minimizing the constitutional violations because under their approach the government violates only one constitutional doctrine--separation of powers--whereas under the Buchanan/Dorf approach there are two constitutional violations: both separation of powers and Section 4 of the Fourteenth Amendment. Again, that's wrong on its terms, because the prioritizers' reading of Section 4 is wrong. Under the right reading, prioritization also violates Section 4. But let's maintain the arguendo assumption that the prioritizers are right about Section 4, so their approach really involves violating only one constitutional provision whereas ours violates two. Would that mean that prioritization would be the least unconstitutional option?


Why not? Because the gravity of a constitutional violation is not a matter of arithmetic. Consider:

Case 1: Police perform a warrantless search of Joe's car without probable cause and find drugs. They then subject Joe to custodial interrogation but fail to give Miranda warnings. Joe admits the drugs were his. At Joe's trial, the presiding judge erroneously allows both the drugs and Joe's confession into evidence in violation of Joe's Fourth and Fifth Amendment rights. The police, prosecutor, and judge have together violated two constitutional provisions.

Case 2: Congress passes a law making it a federal crime punishable by up to ten years in prison to criticize the Speaker of the House. Prosecutions for violations of this law violate only one constitutional provision, the First Amendment.

Isn't Case 2 a more egregious constitutional violation than Case 1, despite the fact that Case 1 involves two constitutional provisions but Case 2 involves only one? More broadly, the egregiousness of a constitutional option is a qualitative determination, not a matter of simple counting.

Bottom Line: Nobody--and especially not Professor Buchanan or I--needs to "invoke" the Fourteenth Amendment to argue that in a debt ceiling crisis the government should issue new debt in excess of the debt ceiling. The prioritizers do need to invoke it. Even so, it doesn't work.