White House Rules Out Constitutional Option On Debt Ceiling: Report

Jeffrey Rosen, professor of law at the George Washington University on NPR:

BLOCK: We're talking about Section Four of the 14th Amendment, the debt clause, adopted in 1868 - so the Reconstruc­tion period after the Civil War. What was the intent? What was this clause designed to do?

Prof. ROSEN: So this is a time when Southern congressme­n are coming back into the Union. Their majorities are augmented because of the freed slaves, and they are interested in forcing Congress to repudiate the Union debt and to pay off the Confederat­e debt. And they also want to give the nation a big bill for what they claimed was the value of the slaves that had been freed by the Emancipati­on Proclamati­on in the 13th Amendment.

So the existing Republican majority was determined that they not be able to do this, and they passed Section Four in the 14th Amendment to prohibit a temporary political majority from repudiatin­g the Union debt obligation­s and assuming other obligation­s.

BLOCK: So at the time that this was approved back in 1868, repudiatio­n referred to what exactly?

Prof. ROSEN: After the Civil War, repudiatio­n would've been a formal act by Congress saying: We are not going to pay the Union debt. That's not what's going on here. The big debate now is what a default or a threat to default be the equivalent of repudiatio­n? Strict constructi­onist say: No. Unless Congress formally says we are ever going to pay the debt, then this constituti­onal provision is not triggered.
The Democrats who support this constituti­onal argument say in effect, if you threaten not to pay obligation­s, that's the functional equivalent of a default, and therefore, the Constituti­on is implicated­.

BLOCK: Has there been case law on this, Jeffrey, this question - this language in the 14th Amendment that the validity of the public debt of the United States shall not be questioned­?

Prof. ROSEN: There's just one Supreme Court case that seems to cast light on this question. It was called Perry versus United States. It was decided in 1935. And in that case, the Supreme Court seem to argue that this debt clause should be interprete­d broadly rather than narrowly. And supporters are seizing on that language to say we should not construe the debt clause strictly, but instead, construe it expansivel­y.

BLOCK: Now, that would support their argument that you could apply it in this case.

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