Wachtler: Debt ceiling doesn't let us skip out on debts

Sen. Ted Cruz leaves a Republican Senate caucus Sen. Ted Cruz leaves a Republican Senate caucus meeting at the U.S. Capitol in Washington. (Sept. 30, 2013) Photo Credit: Getty Images

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If Sen. Ted Cruz had been the head of the defeated Confederate Army in 1865, he would have walked into the McLean house at Appomattox in northern Virginia and demanded that Union Gen. Ulysses Grant surrender unconditionally.

The Texas Republican -- who won a Senate seat in November's elections with heavy tea party support -- was part of last fall's political assault on President Barack Obama's Affordable Care Act. Despite the GOP offensive, Democrats kept the White House and picked up seats in Congress. Now, for the first time in history, the losing side in a war has demanded that the winning side surrender as the price of peace.

We have been warned that the government runs out of money next Thursday, although a deal appeared in the works in Washington Thursday that would raise the debt ceiling and end a government shutdown now in its second week. The lockdown was a result of the intransigence of tea party members who sought to defund Obamacare in exchange for raising the debt ceiling. Their action over the last 11 days risks the credit of the United States -- potentially dealing a devastating blow to our economy and reversing our recovery.

It is apparent that Cruz, with his vaunted Ivy League education, was ignoring both history and a constitutional mandate when he drove the government shutdown. The tea party members of Congress, who extol the virtues of the Constitution, should read it.

After the Civil War, the Constitution was amended to include the 14th Amendment. It provides, in Section 4, that Congress shall not question "the validity of the public debt of the United States." Since then, the terms of that constitutional mandate have been followed.

A desire to put the obligations of the government during the Civil War beyond question brought about the provision. However, in the case of Perry v. the United States in 1935, Chief Justice Charles Evans Hughes, writing for the Supreme Court, noted that "its language indicates a broader connotation."

The court held that Section 4 of the 14th Amendment, declaring that "The validity of the public debt of the United States, authorized by law . . . shall not be questioned," applies to bonds issued both before and after the adoption of the amendment.

If Congress is constitutionally obligated to pay the nation's debts, then why is there a debt ceiling? There was no debt ceiling until 1917. But when the nation entered World War I, President Woodrow Wilson funded the effort by issuing Liberty Bonds. Because the bonds increased the debt, the amount of each bond had to be authorized by Congress.

The Second Liberty Bond Act of 1917 avoided that process by allowing the executive branch to issue bonds without congressional approval, but only if the total debt fell under the statutory debt ceiling. In 1939 Congress authorized President Franklin D. Roosevelt to eliminate limits on bonds and authorized an aggregate limit covering the entire public debt -- giving the Treasury freer rein in financing the budget.

The United States has carried debt during the past 200 years, and though some representatives have made threats over the past few years, Congress has never refused to raise the debt ceiling to pay the nation's bills.

At no time was the debt ceiling intended to allow Congress to avoid paying debt the nation had incurred. Congress must approve expenditures, but after legislating for the funds to be spent, it would be unconstitutional not to pay the debts.

Even if the tea party members insist on following Cruz-like lemmings to use the national debt to get their way on the health care law, it is incumbent on the president, indeed mandated by the Constitution, that this nation's debts be paid by the Treasury Department.

Sol Wachtler is a former chief judge of New York State.

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