Former WA state Attorney General Rob McKenna said if he were a betting man, the United States will not default on its debt.
“It’s really politically foolish of the House majority to trigger a debt default,” McKenna told Dave Ross on Seattle’s Morning News. “And the Supreme Court probably is not going to trigger a national debt crisis itself. I think they’re likelier to conclude that when Congress passes the budget, it’s effectively establishing a new debt ceiling.”
Ross brought up the idea of the president utilizing the 14th Amendment, where section 4 states the “validity of the public debt of the United States, authorized by law … shall not be questioned.”
“The text says that the validity of the public debt shall not be questioned,” Paul Schiff Berman, professor of law at George Washington University, told CBS News. He claimed that under a literal interpretation of the text, “if you don’t raise the debt limit, you are challenging the validity of the public debt, and so, arguably, Congress’s failure would be unconstitutional under the 14th Amendment.”
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“It was never controversial. For scores of times, Congress has raised the debt limit without much comment,” McKenna said. “It was during Newt Gingrich and his time as Speaker of the House that they sort of rediscovered the debt ceiling as a way to try to have their way on the budget. And it’s what shut down the government. So the 14th Amendment has never been tested as a way to essentially declare it to be unconstitutional, which is what the president would be doing if he simply ignores it.”
McKenna said that proponents of playing the 14th Amendment card are “kind of excited” about putting it in front of the Supreme Court.
“The prediction is the majority of the court will not trigger a national debt crisis by deciding that the debt ceiling does not violate the 14th Amendment,” McKenna explained. “There’s another doctrine called Constitutional Avoidance, under which courts try to avoid deciding cases on constitutional grounds if they can find another ground to decide them. And that’s because we want to limit changes to the Constitution.”
McKenna outlined the concept that when Congress adopts the budget, it is essentially setting the debt ceiling.
“It really wasn’t until 1974, when the Congressional Budget Act of 1974 was passed, that Congress really took such control over the federal budget process to the point where they just treat the president’s proposed budget as advisory. And the idea is that when they adopt the budget every year, they’re essentially setting a new debt limit. So whatever the old debt ceiling was, they are effectively amending it by adopting the new budget with its spending, since the spending exceeds the revenues that the budget also provides for.”
McKenna said that if the president does invoke the 14th Amendment, he “will be testing Congress and it could result in a court case, but he has to decide which approach he wants to take and really mean it. I think if he does, that could finally force the compromise that’s necessary to raise the debt ceiling.”
Listen to Seattle’s Morning News with Dave Ross and Colleen O’Brien weekday mornings from 5 – 9 a.m. on KIRO Newsradio, 97.3 FM. Subscribe to the podcast here.