Update: According to the Library of Congress website, July 28, 1868 was the day when Secretary of State William Seward "issued a proclamation certifying without reservation that the Fourteenth Amendment was a part of the United States Constitution." Todd told his viewers that July 28, 1868 was the day the amendment "officially became part of the U.S. Constitution" although Article V of the U.S. Constitution states that amendments "shall be valid to all intents and purposes...when ratified by the legislatures of three fourths" of the states, which in the case of the Fourteenth Amendment would be July 9, 1868.
Wanted: Better fact checkers for MSNBC.
For today's "Flashback" feature on the "Daily Rundown," anchor Chuck Todd misinformed viewers by noting that on July 28, 1868, the 14th Amendment went into effect.
In fact the amendment went into effect when South Carolina ratified it on July 9, 1868.
But not only was Todd off by 19 days, he selectively quoted a passage of the 14th Amendment that has some relevance to the debt ceiling debate:
...it's a little-known section of the Fourteenth Amendment that's getting all the attention these days. It's a section that states, quote, "the validity of the public debt shall not be questioned."
Some Democrats, of course, are calling for President Obama to invoke this clause and end the current crisis by raising the debt ceiling himself.
The White House maintains that invoking the 14th Amendment is not an option, that they've talked to their lawyers and it can't happen. Okay.
Here's the actual language of Section 4 of the 14th Amendment (emphasis mine):
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.
You'll notice that Todd omitted the key phrase "authorized by law," as in legislation that has passed Congress, not a presidential fiat.
Todd noted that White House lawyers say they can't raise the debt ceiling without congressional approval, but it would have been more instructive to inform MSNBC viewers that the notion that a president can unilaterally act to boost the debt ceiling is so outrageous that even liberal constitutional law scholar Laurence Tribe has objected to it.
Here's a relevant excerpt from Tribe's July 8 New York Times op-ed (emphasis mine):
The Supreme Court has addressed the public debt clause only once, in 1935, in the case of Perry v. United States. The court observed only that the clause confirmed the “fundamental principle” that Congress may not “alter or destroy” debts already incurred.
Some have argued that this principle prohibits any government action that “jeopardizes” the validity of the public debt. By increasing the risk of default, they contend, any debt ceiling automatically violates the public debt clause.
This argument goes too far. It would mean that any budget deficit, tax cut or spending increase could be attacked on constitutional grounds, because each of those actions slightly increases the probability of default. Moreover, the argument is self-defeating. If it were correct, the absence of a debt ceiling could likewise be attacked as unconstitutional — after all, the greater the nation’s debt, the greater the difficulty of repaying it, and the higher the probability of default.
Other proponents of a constitutional deus ex machina have offered a more modest interpretation of the public debt clause, under which only actual default (as opposed to any action that merely increases the risk of default) is impermissible. This interpretation makes more sense. But advocates of the constitutional solution err in their next step: arguing that, because default would be unconstitutional, President Obama may violate the statutory debt ceiling to prevent it.
The Constitution grants only Congress — not the president — the power “to borrow money on the credit of the United States.” Nothing in the 14th Amendment or in any other constitutional provision suggests that the president may usurp legislative power to prevent a violation of the Constitution. Moreover, it is well established that the president’s power drops to what Justice Robert H. Jackson called its “lowest ebb” when exercised against the express will of Congress.
Worse, the argument that the president may do whatever is necessary to avoid default has no logical stopping point. In theory, Congress could pay debts not only by borrowing more money, but also by exercising its powers to impose taxes, to coin money or to sell federal property. If the president could usurp the congressional power to borrow, what would stop him from taking over all these other powers, as well?
