Paul F. deLespinasse: Debt ceiling increases implicitly authorized by Congress

The debt ceiling problem has not been solved, just postponed until January of 2024. The recent deal was better than nothing, but we should not allow a similar fiasco in 2024.

During the recent negotiations, some Democrats urged President Joe Biden to invoke the 14th Amendment's provision that "the validity of the public debt of the United States … shall not be questioned." They contended that this means the debt ceiling is unconstitutional.

Harvard Law School's leading constitutional expert, Laurence W. Tribe, endorsed this idea. However another leading expert, Stanford law professor Michael McConnell (a former federal appellate judge), argued that the Constitution gives Congress a monopoly of the right to authorize the government to go into debt.

Therefore, said McConnell, Biden must not rely on a "far-fetched interpretation … of the 14th Amendment."

McConnell is probably right. As the contrary conclusion by professor Tribe demonstrates, the14th Amendment can be interpreted several different ways.

Anyway, there is no need to employ the 14th Amendment argument. Even if there were no 14th Amendment, the debt ceiling limit enacted by Congress is obviously unconstitutional.

Judge McConnell argues — I believe correctly — that the Constitution gives Congress exclusive authority to allow increasing the debt. But Congress has implicitly already exercised this power whenever it appropriates more money than the taxes it has enacted will bring in.

By these two actions, Congress itself requires the government to borrow more. It would be ridiculous for Congress to forbid the government from doing what it requires it to do.

The Impoundment Control Act of 1974 — passed after President Richard Nixon tried to hold back appropriated money he considered wasteful — implied a presidential duty to spend all of the money that Congress has appropriated.

Additional legislation to increase the debt ceiling is not needed and can only be the basis for continual partisan mischief.

Until now, decisions by Congress about spending and taxing were the last word. Allowing the finality of these decisions to be undermined later would throw our public affairs into even more confusion than already exists.

Of course previous decisions about spending and taxing can be altered by Congress.

But it must do so by regular legislation — cutting particular spending or increasing taxes — supported by majorities in both houses, not by legal limits on borrowing while previous spending and tax legislation remains unchanged.

This is especially true when the only politically available option for reducing the deficit is to cut spending. There are occasions — including wartime and pandemics — where it is really necessary for the government to spend more.

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It would help if Republican legislators would stop adhering to the pernicious and demagogic "Norquist Pledge" never to raise any taxes, while continually pressing for increased money for the Pentagon. It would also help if Democratic leaders would stop promising not to raise taxes on people making less than $400,000 annually, which is about 98% of the population.

Grover Norquist declared in 2001: “I don’t want to abolish government. I simply want to reduce it to the size where I can drag it into the bathroom and drown it in the bathtub.”

Of course tax increases are never popular, but is a feeble government really what Americans want?

Paul F. deLespinasse is a retired professor of political science and computer science at Adrian College. He can be reached at pdeles@proaxis.com.

This article originally appeared on The Daily Telegram: Paul deLespinasse: Debt ceiling increases implicitly authorized