“This Constitution, and the laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land…any thing…to the contrary notwithstanding.” (Article VI, Clause 2; emphasis added)
THE DEBT CEILING was established by the Second Liberty Bond Act of 1917. It is the technicality of technicalities and of dubious constitutionality.
The debate over debt management or default was settled in the beginning. The latter was out of the question. James Madison dismissed “the pretended doctrine that a change in the political form of civil society has the magical effect of dissolving its moral obligations.” (The Federalist Papers, No. 43) “All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.” (Article VI, Clause 1) The “original intention” was to make our word true. Thus, Secretary of the Treasury Alexander Hamilton gave force and effect to Article VI, Clause 1. His measures made meaningful the related power “to borrow money on the credit of the United States.” (Article I, Section 8, Clause 2) He established the good faith of the nation and gave us our good name. Therefore the precedent of the Washington Administration must stand.
Whenever a dispute arises over Article VI, Clause 1, the President must send a message to the House of Representatives, which has “(t)he exclusive privilege of originating money bills.” (Alexander Hamilton, The Federalist Papers, No. 66) Then, after giving due notice, Biden would issue a Proclamation on Public Credit declaring that the United States will not default. The President would do so through an Executive Order on the Means of Extinguishment and invoke the Gephardt Rule, which simply stated that the debt ceiling was “deemed to have passed” when a budget resolution was approved.
“No axiom is more clearly established in law, or in reason, than that whenever the end is required, the means are authorized; whenever a general power to do a thing is given, every particular power necessary for doing it is included.” (James Madison, The Federalist Papers, No. 44) In taking the oath to “preserve, protect and defend the Constitution of the United States,” the President must then “take care that the laws be faithfully executed”—and the Constitution is the first law. (Article II, Section 1, Clause 8; Article II, Section 3 & Article VI, Clause 2) Thus, a Proclamation on Public Credit and an Executive Order on the Means of Extinguishment* can be issued on the basis of prerogative, which John Locke defined as “nothing but the power of doing public good without a rule.” (Second Treatise of Civil Government, 166) The same point was made in the debates contained in the Pacificus and Helvidius letters after Washington issued the Proclamation of Neutrality in 1793; it was described in TR’s stewardship theory; and it was restated when JFK said that, at times, a President must use the full powers of the office—“all that are specified and some that are not.”
“There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.” (Alexander Hamilton, The Federalist Papers, No. 78) The debt ceiling is a statutory provision while Article VI, Clause 1 is reaffirmed by Section 4 of the Fourteenth Amendment: “The validity of the public debt of the United States, authorized by law,…shall not be questioned.” Thus, the Second Liberty Bond Act of 1917 was not “made in pursuance thereof” and, is, therefore, void. (Article VI, Clause 2)
THE END OF THE PREAMBLE makes clear the purpose of the Constitution—to “promote the general welfare and secure the blessings of liberty to ourselves and our posterity.” But that becomes impossible if we cannot survive in the material world. And those threatening to make the nation destitute—who will condemn the use of prerogative, “the power of doing public good without a rule”—must consider James Madison’s words regarding interpretation of the supreme law of the land.
“There are two
rules of construction, dictated by plain reason as well as founded on legal
axioms. The one is that every part of
the expression ought, if possible, to be allowed some meaning, and be made to
conspire to some common end. The other
is that where the several parts cannot be made to coincide, the less important
should give way to the more important part; the means should be sacrificed to
the end, rather than the end to the means.”
(The Federalist Papers, No. 40)
(c)2021 Marvin D. Jones. All rights reserved.
*On January 9, 1790, Alexander Hamilton sent the First Report on Public Credit to the House of Representatives. He stated that “…(T)he creation of debt should always be accompanied with the means of extinguishment.” Therefore, in his Executive Order, President Biden should instruct the IRS to carefully review provisions of the tax code that would increase revenue. In the Second Report on Public Credit, on December 13, 1790, Hamilton proposed the creation of a national bank.
https://www.theatlantic.com/politics/archive/2011/05/how-dick-gephardt-fixed-the-debt-ceiling-problem/238571/ [the Gephardt Rule]
https://www.youtube.com/watch?v=2T6jqTedp2A [Mitch McConnell objecting to his own debt ceiling proposal]
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