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Can the President Raise the Debt Ceiling Without Congress?

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President Barack Obama

President Barack Obama calls for an increase in the the debt ceiling during an impasse with Congress in July 2011.

Chip Somodevilla / Getty Images
Updated October 03, 2013

The U.S. Constitution makes clear in Article I, Section 8 that Congress can run up the national debt as it deems necessary. The Founding Fathers identified Congress as having the authority "to borrow money on the credit of the United States."

But when the federal government maxes out on spending and refuses to raise the statutory limit on borrowing, is the president allowed to raise the debt ceiling without permission from Congress to avoid defaulting on the government's obligations?

The answer is one that even legal scholars have puzzled over, particularly during the lengthy 2011 debt ceiling impasse between President Barack Obama and Congress that ended only hours before the government was expected to run out of money to pay its bills.

Debt Ceiling and the 14th Amendment

The Constitution is vague on the question.

The 14th Amendment states, in part, that "the validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned."

In other words, some scholars argue, Congress has no authority to object to spending of which it has already approved.

Supreme Court and the Debt Ceiling

The U.S. Supreme Court, writing in 1935, seeming to indicate the 14th Amendment, which was designed to ensure payment of Union debts after the Civil War, was relevant beyond that time in history.

"While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the Civil War, its language indicates a broader connotation," Chief Justice Charles Evans Hughes wrote at the time.

"We regard it as confirmatory of a fundamental principle which applies as well to the government bonds in question, and to others duly authorized by the Congress, as to those issued before the amendment was adopted."

Debt Ceiling History

Constitutional scholars can argue the finer points of what the Founding Fathers intended. But history is clear. The president has never had to unilaterally hike the debt ceiling because Congress has never failed to do so when circumstances warranted.

Also see: 5 Presidents Who Raised the Debt Ceiling

From 1960 through 2010 Congress has adjusted the debt ceiling 78 times - 49 times under Republican presidents and 29 times under Democratic presidents.

Simply put, Congress has been forced to increase the debt ceiling because the federal government's level of spending has continued to grow. Otherwise it risks defaulting on its obligations.

The President and the Debt Ceiling

The nation's 42nd president, Bill Clinton, a former law professor, said in widely reported comments to the media that the president can - and should - raise the debt ceiling under the Constitution's 14th Amendment without approval from Congress if the United States is in danger of defaulting on its obligations.

"I think the Constitution is clear and I think this idea that the Congress gets to vote twice on whether to pay for (expenditures) it has appropriated is crazy," Clinton told The National Memo in July 2011. Raising the debt ceiling, Clinton argued, was necessary because Congress had to "pay for appropriations already made."

U.S. Sen. Tom Harking, a Democrat from Iowa, called on Obama to use the 14th Amendment solution.

"When the country's future, when it's in a crisis mode and our future is at stake, I believe the president can act boldly, should act boldly, must act boldly," Harkin said.

"The president can use his presidential power and authority to sign an executive order getting rid of the debt ceiling so that constitutionally we make good on our debt obligations."

Dispute Over the 14th Amendment

Others disagreed with such an interpretation of the 14th Amendment's take on the debt ceiling.

Erwin Chemerinsky, dean of the University of California at Irvine's School of Law, said the president has no authority to overturn a debt ceiling established by Congress.

"The power of the purse - including the authority to tax, spend and borrow - is quintessentially legislative. Not even a dire financial emergency would allow the president to take this over," Chemerinsky wrote in an op-ed published in the Los Angeles Times in July 2011. "The Constitution, thankfully, has no provision allowing for its suspension even in times of crisis."

Obama and the Debt Ceiling

During the impasse between Obama and Congress over hiking the $14.294 trillion debt ceiling in summer 2011 in, the fourth increase of the mandatory borrowing cap in Obama's first term, scholars and activists questioned whether the president could raise the debt ceiling without approval from Congress.

Obama decided against such a move, nicknamed the "constitutional option." He said White House attorneys had researched the idea and believed it would not hold up in court.

"I have talked to my lawyers," Obama said at the time. "They are not persuaded that that is a winning argument."

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