Why Biden Is Prohibited From Acting on His Own on Debt

Historian Eric Foner of Columbia sees “a way out of the current impasse” over the debt ceiling. His scheme is for President Biden to invoke the debt clause of the Reconstruction-era 14th Amendment. Mr. Foner suggests that its language — declaring that the “validity of the public debt of the United States” shall “not be questioned” — means that Mr. Biden can “act on his own” to ensure America’s debts are paid at their original value. This strikes us as inaccurate, even if, as Mr. Foner puts it, “long-forgotten provisions of the 14th Amendment are suddenly crying out for enforcement.” The historian notes that the validity of the federal debt was one of the “political conflicts” of the post-Civil War era. He’s right to note that the amendment bars action by any branch of government to cancel or repudiate that debt. Yet the amendment grants no power of unilateral action to Mr. Biden.At the time the 14th was being drafted, federal debt had soared to $2.8 billion from $61 million before the Civil War. This was an unprecedented level of borrowing, representing some 40 percent of the economy. Backers of the amendment, Mr. Foner observes, “feared that at some future time former Confederates might return to power” and try to cancel the federal war debt. Hence the text noting that this debt “shall not be questioned.”Mr. Foner contends, too, that the North’s wartime “legal tender paper money” — wartime issues without convertibility in gold — were a factor in the amendment’s wording. This mention of greenbacks, though, is a red herring in today’s debate. The question of how, or if, the greenbacks would be redeemed in gold prompted “intense and exasperated conflict,” Mr. Foner observes. Yet it wasn’t top of mind for the amendment drafters. Instead, federal bonds — “payable in gold” — were “the issue uppermost in the mind of the country,” legal sage Phanor Eder observed. Looking at the debates in Congress, he found the 14th’s provision was meant “to insure that the principal and interest of the gold bonds should be paid according to their tenor in gold, and not in paper money currency.” President Grant, in his 1869 inaugural, called that essential “to protect the national honor.”Eder, writing in 1933 after FDR had in effect defaulted on the Gold Standard Act of 1900, asks a further question in respect of the “forgotten section” of the 14th Amendment: “Was it not clearly proposed also to establish a perpetual dike against momentary waves of inflation and repudiation, total or partial?” An apt query, as Congress had just abrogated the “gold clauses” in contracts and bonds promising to repay America’s debts in gold. One can only imagine how the writers of the 14th Amendment — or Grant — would have responded when that default was upheld by the Supreme Court in the notorious Gold Clause Cases of 1935. Even more so, what would they make of Mr. Foner’s proposal that Mr. Biden use the 14th Amendment as the authority for him to cover the debts America has already incurred by borrowing yet more irredeemable electronic paper ticket money?Mr. Foner concedes the 14th’s “language is certainly infelicitous” — meaning, it doesn’t say what he wants it to say. He wishes Congress had “found better wording than declaring it illegal to ‘question’” the debt. Yet the Framers didn’t use language loosely. The wording is crucial to the meaning, scholar Stuart McCommas says — statutes and texts in the 19th century use “question” to denote a “legal claim in a lawsuit” or a “legal challenge.”Plus, too, Justice Story used the phrase “question the validity” in “a technical sense” to mean a “legal action,” Mr. McCommas observes. That is far from Mr. Foner’s breezy presumption that “the amendment’s language is mandatory, not permissive.” The amendment is clear: no branch of the government can take positive steps to deny the debt. It is not a blank check for Mr. Biden to defy the will of Congress on raising the debt ceiling.

Why Biden Is Prohibited From Acting on His Own on Debt

Why Biden Is Prohibited From Acting on His Own on Debt

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