Professor: The debt ceiling is unwise and unconstitutional. Why does Congress not outlaw it?

Nicholas Barry Creel is an assistant professor of business law at Georgia College and State University in Milledgeville.

Once again, Congress has kicked the can down the road on determining whether the United States will default on its debt that arose from spending they previously authorized. The political grandstand that gives rise to this behavior is of course nothing new.

Republicans may be the culprits in threatening to take us over the edge but it wasn’t long ago that then-Sen. Obama used the issue to score political points prior to his run for the presidency. 

Regardless of which party is to blame in the matter, the fact remains that the debt ceiling is both an unwise and unconstitutional policy. It is far past time we put an end to the partisan hijinks that threaten to catastrophically upend the entire world economy by committing to always honor the debt we incur. 

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The debt ceiling, the official limit to the amount of money the United States can borrow to pay for authorized spending that exceeds tax revenues, is itself a product of political compromise. It was crafted in the wake of prolific spending to fund World War I as a way to placate anti-war and fiscally conservative members of Congress. 

By separating out the votes on sending and the debt necessary to pay for that spending, it allowed those members of Congress the ability to take a harmlessly symbolic stance against the very policies they just voted to support. It was, in a word, theater. The time has come to cancel this show.

If nothing else, eliminating the debt ceiling spectacle is justified by how unwise a policy it is. Exceedingly few countries have any sort of similar policy for this very reason. Those that do tend to set the ceiling so high as to prevent it from becoming an issue every few months or years. After all, by setting a debt ceiling at all, a country is more or less broadcasting to the world its potential unwillingness to actually pay for its spending. 

The logical equivalent to Congress setting a debt limit would be a person who, after having spent tens of thousands of dollars on a credit card, later claims they don’t recognize the debts they incurred from spending they authorized above some arbitrary dollar level they set for themselves prior to their speeding spree. It is easy to imagine the bleak financial future of a person who would follow through with such a threat. So too would the financial future of our nation be irreparably damaged were we to decide not to pay our debts. 

As to why the debt limit is likely unconstitutional, we need only look to Section 4 of the 14th Amendment which reads that ‘’The validity of the public debt of the United States, authorized by law…shall not be questioned.’’ It is difficult to read that plain language as anything other than a strict prohibition against refusal to pay our debts.

True, we also have a properly enacted law on the books that sets a debt limit for the nation. However, any law that conflicts with the Constitution is inherently invalid. The Constitution is the supreme law of the land and no simple law can override it, only an Amendment to the Constitution can change the Constitution. 

As such, President Biden can and should simply instruct the Department of the Treasury to disregard the debt ceiling law and issue new debt as needed to pay for spending Congress has authorized. Doing so would be in keeping with his oath of office to “preserve, protect and defend the Constitution of the United States.”