Eric Posner Argues for Constitutional Amendment on Debt Ceiling
Now that it’s clear we’ve survived the debt crisis, the next step is to prevent it from happening again. Ever.
How could we do that? Some commentators have urged Congress to take the debt ceiling off the table by spending less or taxing more. Another possibility: Bring back a parliamentary rule in the House, known as the Gephardt rule, which provided that when the House approved the budget, the debt ceiling automatically increased to the extent necessary to fund the budget. Or Congress could simply repeal the debt ceiling statute and agree never to re-enact it.
The problem with these fixes is that they can last only as long as a majority in Congress want them to last. A better solution is a constitutional amendment. Section 4 of the 14th Amendment already provides that the “validity of the public debt … shall not be questioned.” But Section 5 gives Congress, not the president, the power to enforce this provision, and, against the background of Article 1, Section 8, which gives Congress alone the power to borrow money, the 14th Amendment cannot be interpreted to give the president such power, much as some people might like. Indeed, President Obama disclaimed any authority to borrow money under this theory.