Clearing the Air on the Debt Limit Page: 10 of 15
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Clearing the Air on the Debt Limit
argue that such executive branch actions would be extraconstitutional and would usurp the
congressional power of the purse, but might be justified by an appeal to necessity.49 Although
there is scant case law on the meaning of the Public Debt Clause,50 the clause would appear
unlikely to justify the President spending funds in excess of a congressionally imposed debt
Why Does the Fourteenth Amendment Have a Public Debt Clause?
Framers of the Fourteenth Amendment sought to assert federal powers to protect civil rights and
ensure that the eventual reentry of former Confederate states would not lead to a rollback of
constitutional reforms. During the latter part of the Civil War, Members of Congress began to
consider the issue of reconstruction. In 1864, the Wade-Davis Bill, passed by Congress but pocket
vetoed by President Lincoln, included a clause that "No debt, state or confederate, created by or
under the sanction of the usurping power, shall be recognized or paid by the state."5' After the
Confederate surrender, the assassination of President Lincoln, and the inauguration of President
Andrew Johnson in April 1865, congressional leaders took more direct initiatives to shape the
Establishment of federal guarantees for civil and political rights for former slaves became a
central aim of a strong majority of lawmakers.52 Many realized that extending political rights to
former slaves would mean superseding the three-fifths clause that set out rules for apportionment
of House seats in Article I, Section 2 of the Constitution. Counting former slaves as whole
persons for purposes of apportionment would eventually increase the size of delegations from
former Confederate states.53 Representative James Garfield estimated that those states would gain
at least 15 seats and others estimated gains of some 40 to 60 seats.54 Such potential shifts in
political power raised alarms that a future coalition could emerge that would repudiate federal
Community (May 19, 2011); Bruce Bartlett, "The Debt Limit Option President Obama Can Use," The Fiscal Times
(April 29, 2011). Jeffrey Rosen, "How Would the Supreme Court Rule on Obama Raising the Debt Ceiling Himself?"
New Republic (July 29, 2011). As stated by one commentator:
... it's not hard to argue that the Constitution places both payments on the debt and payments owed
to groups like Social Security recipients - pensioners, that is,-above the vagaries of Congressional
politics. These debts have to be paid, the argument would be, in full, on time, without question. If
Congress won't pay them, then the executive must.
Garrett Epps, "Our National Debt 'Shall Not Be Questioned,' the Constitution Says," The Atlantic (May 4, 2011).
49 Neil H. Buchanan and Michael C. Dorf, supra note 6.
so The Supreme Court appears to have addressed the Public Debt Clause in only one case. In Perry v. United States,
294 U.S. 330, 354 (1935), the Court struck down a 1933 joint resolution purporting to abrogate a clause in government
war bonds calling for payment in "gold coin of the present standard of value." Id. at 331. Instead, the resolution
allowed payment in dollars of the bond's face amount. Id. at 349. The Court held that the clause was intended to "put
beyond question the obligations of the government.... " Id. at 354.
51 National Archives and Records Administration, Transcript of Wade-Davis Bill (1864),
52 Joseph B. James, The Framing of the Fourteenth Amendment (Urbana: University of Illinois Press, 1956), pp. 3-20.
5 Ibid., p. 22. On September 18, 1866, New York Herald editor James Gordon Bennett estimated that southern states
would gain 40 seats if the franchise were restricted to white voters and 61 seats with universal (male) franchise (p. 5).
54 The 1860 Census results indicated a House of 243 Members, although due to secession the 39th Congress had only
193 Members. See Office of the Historian, U.S. House of Representatives, 39th Congress Profile;
http://history.house.gov/Congressional-Overview/Profiles/39th/. Also see archived CRS Report 95-791, House of
Representatives: Setting the Size at 435, by David C. Huckabee, available upon request.
Congressional Research Service
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Austin, D. Andrew & Thomas, Kenneth R. Clearing the Air on the Debt Limit, report, November 2, 2017; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc1043199/m1/10/: accessed May 22, 2019), University of North Texas Libraries, Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.