14th Amendment & Federal Debt

There is growing support for the use of the 14th Amendment to the US Constitution to enable the President to ignore the Federal debt limit in current law, so as to enable the payment of all Federal obligations in the face of a legislative deadlock for raising the US debt limit.

Section 4 of the 14th Amendment to the US Constitution reads as follows:

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. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

While the language of the Amendment seems clear as to a requirement of US debts being paid, its application to the current dynamic of Congress failing to raise the debt limit to enable the payment of all Federal financial obligations is certainly not clear. The context of the Amendment is connected to the payment of debt after the US civil war and the lingering divisions between the north and confederate south, and where a statutory debt limit did not exist. The context here is a political dispute on Federal fiscal policy with a statutory debt limit that has been place since 1917.

Ultimately, the President could use the 14th Amendment to immediately raise borrowing, but then the matter would turn to Federal courts with likely immediate court filings against such an action by the President. That would cause a constitutional crisis, with the Supreme Court’s immediate involvement in the matter.

The Supreme Court could take any number of actions ranging from issuing an interpretive ruling on the application of the 14th Amendment to debt limiting law, to simply deciding that a plain reading of the 14th Amendment applies (which is unlikely). The latter situation could enable the President to raise as much money as is needed to pay US obligations under the law. The former situation could result in near-term action by the Court to stop the President from taking unilateral action, leaving the current fiscal crisis unresolved.

(posted: 5-10-23)

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Equal Rights Amendment

The Senate failed (April 27) to permit consideration of a resolution to officially remove time limits imposed for ratification of an Equal Rights Amendment (ERA) to the US Constitution.

An ERA passed the Congress by large margins in 1971. The amendment required the subsequent ratification of 38 states, but just 35 ratified the amendment within original and extended deadlines. Several more states did so after such deadlines to enable the amendment to reach the 38-state level but, at the same time, six states revoked their ratification even though there is no specific accommodation in the Constitution for taking such an action.

Ratifications after the original deadline and questions about the ability of states to revoke ratifications led to lawsuits and uncertainty on the question of the legality of the amendment. A District Court ruled in 2021 that the ratifications were too late to count.

As a consequence, the Archivist of the United States declined to identify the ratifying states, certify that the amendment has become part of the Constitution, and publish the amendment, all of which is required under current law (USC 106b) for an amendment to have effect.

Under the proposed resolution of the Senate (S.J.Res.4), the ERA would be affirmed as ratified by three-fourths of the states and therefore a valid constitutional amendment, regardless of any time limit. A procedural vote failed to overcome a Republican-led filibuster, however, which means the resolution cannot be considered by the Senate. A two-thirds majority of Senators is necessary to overcome a filibuster effort. Just two Republicans voted with Democrats to enable consideration of the resolution.

The proposed ERA provides that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” The intended goal is to end any legal-based distinctions between men and women which can lead to discrimination.

Supporters argue that some state and local laws can be discriminatory in favor of men over women, including actions that have undermined abortion rights. Opponents in the past have claimed, among other things, that the ERA could result in women being drafted into the military, and that women will more easily lose custody of children in divorce cases.

Some might argue that federal, state, and local laws (as well as overall cultural norms concerning women) have changed enough over time to protect the specific interests of both sides of the ERA debate. While this may be true, a constitutional amendment would make it very difficult to turn back protective laws in the future.

Ultimately, this matter is more likely than not off the table again for the immediate future until if, and when, there is sufficient support in the Senate for such a resolution.

(posted: 4-28-23)

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Marriage Rights - Statutory Protection

The Senate passed the Respect for Marriage Act (November 29). The vote was 63-36, with three Senators not voting. The House passed the measure by a vote of 258-169 (December 8), with 4 Republicans not voting and 1 Republican voting "present." President Biden signed the measure into law on December 13.

Completion of this legislation was made possible because a bipartisan group of Senators negotiated a compromise version of the legislation. That group included Senators Tammy Baldwin (D-WI), Susan Collins (R-ME), Rob Portman (R-OH), Kyrsten Sinema (D-AZ), and Thom Tillis (R-NC).

The Respect for Marriage Act requires the federal government to recognize a marriage between two individuals if considered valid in the state where the marriage was performed. The legislation also requires that valid marriages are given full faith and credit, regardless of the couple’s sex, race, ethnicity, or national origin.

Elements of the Senate bill that were included to secure bipartisan support included provisions that:

• Confirm the legislation cannot supersede or diminish religious liberty and conscience law protections, including but not limited to the Religious Freedom Restoration Act.

• Confirm that non-profit religious organizations will not be required to provide any services, facilities, or goods for the solemnization or celebration of a marriage.

• Guarantee that this legislation may not be used to deny or alter any benefit, right, or status of an otherwise eligible person or entity (e.g., tax-exempt status).

• Makes clear that the bill does not require or authorize the Federal Government to recognize polygamous marriages.

Marriage rights protection legislation is under consideration because the Supreme Court overturned long-standing case law on abortion in the summer (Roe v. Wade), raising concern that the Court could do the same on a 2015 decision (Obergefell v. Hodges) that required states to license and recognize same-sex marriages.

PolitiFact identified the U.S. states where same sex marriage would be banned, or potentially banned, via state laws should the existing Supreme Court ruling be overturned (note: there is no case tied to this matter before the Court during its current 2022-2023 session).

(updated: 12-13-22)

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