The Learning Curve

New tricks for an old dog.

Executive borrowing under the 14th Amendment

In the history of the United States it has been common enough for ordinary individual to advance money and materials for the use of the Nation, without any advance Congressional authorization of an official ‘borrowing.’ It frequently has happened in wartime that supplies were requisitioned, and paid for later. Compensation and repayment are prominent principles in the Bill of Rights. The 5th Amendment provides, ” nor shall private property be taken for public use, without just compensation.” That is all prior to the 14th Amendment’s provision, “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.”

The common law principle of quantum meruit has a long history and is in good standing nation wide. The New York expression of quantum meruit is: A plaintiff must allege that (1) defendant was enriched; (2) the enrichment was at plaintiff’s expense; and (3) the circumstances were such that equity and good conscience require defendants to make restitution.

It would be reasonable to conclude that anyone lending money to the United States of America in good faith, with or without Congressional authorization, would be entitled as a matter of general and Constitutional legal principles to be repaid with interest at the agreed rate. If anyone with standing sought to invalidate the loan or its repayment with interest simply because it lacked prior Congressional authorization, they would fall flat on their face in court. Given the Supreme Court’s recent rulings on the issue of standing, there may not be anyone in a position to assert a complaint anyway.


Written by Tom Fox

07/20/2011 at 11:52 pm

Posted in Politics

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