The Speech Obama Could Give: 'The Constitution Forbids Default'

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Imagining a presidential address confronting Republicans who want to risk the nation's credit for political reasons

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My fellow Americans, I am speaking to you tonight to let you know the steps I have taken to ensure that America lives up to its obligations during the current political crisis. As you know, the continuing recession and the pressures of running two wars have made it necessary for the government to borrow money on the world market in order to meet our commitments at home and abroad, see to it that our armed forces receive their pay and equipment, and fulfill our obligations to the retired, the unemployed, and those in need of medical care.

Unfortunately, Congress has not passed an increase in the statutory debt limit as the deadline approaches. Members of the House majority have informed me that they will not agree to an increase in the debt limit without imposing restrictions on the government budget that will threaten our nation's recovery, imperil the national defense, and cause widespread suffering. I have offered to negotiate in good faith, as I did during the budget crisis, but they have shown no interest in real negotiations.

As of midnight tonight, the government's statutory borrowing authority will be exhausted. If no measures are taken, the government must either default on its bonded indebtedness or on its obligations to seniors on Social Security, to unemployed workers dependent on federal insurance payments, and to American service personnel serving in areas of armed conflict.

That is what the Framers intended: to set the debt obligations of our country beyond the reach of Congressional meddling.

For this reason, I have ordered that Secretary of the Treasury Timothy Geithner immediately begin issuing binding debt instruments on the world market sufficient to cover all the current obligations of the United States government, even in default of Congressional action to meet those obligations.

I take this action to fulfill the oath I took as president of the United States. The Constitution explicitly requires me, under my duty to "take care that the laws be faithfully executed," to meet and pay all debts of the United States.

This requirement is absolute. It is contained in Section Four of the Fourteenth Amendment, which directs, in no uncertain terms, 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."

This provision makes clear that both the monies our nation owes to bondholders, and the sums promised in legislation to those receiving pensions set by law from the federal government, must be paid regardless of the political whims of the current congressional majority. All obligations that the nation has undertaken by drawing on its credit must at all times be rendered current.

As a former professor of constitutional law, I want to explain to you the origin of Section Four. After the Civil War, political leaders in the defeated South announced their intention of resuming their seats in Congress and of using their power--augmented by increased Congressional representation for the freed slaves--to compel the federal government either to pay off all debts of the Confederacy or to default on the national debt which had been borrowed to finance the Union war effort. They also intended to present to the nation a huge bill for what they claimed was the value of the slaves that had been freed by the Emancipation Proclamation and the Thirteenth Amendment.

For this reason, the Framers of the Fourteenth Amendment wrote into our fundamental law an absolute prohibition against defaulting on the national debt. Its language establishes a complete firewall against the misuse of governmental power by one political faction to get its way by wrecking the public credit. Only one other provision of the Constitution--the Thirteenth Amendment's categorical prohibition on slavery--is as rigid as the language of Section Four. That language is not binding only on Congress, but on all parts of the government, including the executive branch.

For nearly a century and a half, the absolute language of the Fourteenth Amendment was not even questioned. I regret to say, however, that today our nation faces exactly the threat Section Four was designed to guard against. A vocal and determined political minority--what our great Founder James Madison would have called a "faction"--is determined to use its dominance in one House of Congress as a weapon to circumvent the democratic process. It wants to find a back-door way to undo programs and policies that have been democratically enacted over a 75-year period. It wants to impose a narrow vision of government and America that has been rejected by our people repeatedly over the same period.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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