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Government Shutdown 2013: Why the Supreme Court Might Get Involved

Article I, Section 8, Clause 1 of the U.S. Constitution assigns the responsibility to pay the debts of the United States to the Congress. Section 4 of the Fourteenth Amendment to the Constitution states "The validity of the public debt of the United States, authorized by law .. shall not be questioned." U.S. debt, is both public debt sold with the authorization of Congress to the public to finance the budget deficit and raise funds to pay the government's obligation, and internal government debt, such as what Congress borrows from the reported surpluses of Social Security, Medicare, Transportation, etc. All are legal obligations authorized by law and thus must be paid.

President Obama has stated as much. His position is firm: he will not negotiate on raising the debt limit. Some Republican members of the House of Representatives, including Majority Leader Eric Cantor (R-Va.), have stated they will not approve an increase to the debt limit unless implementation of the president's healthcare law is delayed. But brinkmanship could be the congressional GOP's undoing. Is Congress ready to abdicate its responsibility to the Supreme Court?

Congress has always maintained oversight on the federal debt. A statutory limit to the amount of debt the government could hold was not put in place until 1917 when Congress passed the Second Liberty Bond Act. Restrictions on the debt were revised through the 1920's and 1930's until Congress enacted an overall limit to federal debt in 1939.

And Congress has fulfilled its constitutional obligation in the past. Over the past 50 years, Congress has altered the debt limit 77 times; on six occasions it lowered the limit, 12 times it kept it the same, and on 59 the legislature increased the limit (Table 7-3 2010 Budget of the United States). Since 1979, most of these actions were accomplished by imposing the Gephardt Rule, named after then-Representative Dick Gephardt (D- Mo.), which considered the debt limit raised to meet the budget upon passage of the joint budget resolution. If there is no joint budget resolution, the Gephardt Rule cannot be used. This is how we have gotten to where we have been since 2004. By failing to pass a formal budget, relying instead on continuing resolutions, the debt ceiling can only be adjusted by separate action.

OWill the United States government pay its just debts in a timely manner as required by the Fourteenth Amendment or has the stubbornness of the president and Congress finally reached the point where politics trumps the Constitution and hell be damned?

One of the founding principles of the Tea Party movement is adherence to the Constitution. To me, it comes across as somewhat hypocritical that the Tea Party element of the GOP is leading the push to not pay our debts, as authorized by law, specifically directed by that document.

The proper place to push for a delay of Obamacare is during debate on the actual budget. That is the constitutional role of Congress. The size of the debt and deficit must be addressed. The budget is the instrument. The debt, previously approved by Congress, must be paid. Will Congress do its job or will the Supreme Court have to do it for them?

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