Thursday, October 10, 2013


Political Mayhem Thursday: What about the Fourteenth Amendment?

My colleague Chuck Reid has written an intriguing piece over at the Huffington Post, extending the argument made by Garrett Epps that the Fourteenth Amendment ("[t]he validity of the public debt of the United States . . . shall not be questioned") should allow the Obama administration to simply ignore the debt ceiling.  Here is where Chuck goes with it:

I would add two further points. The first is that the constitutionally-imposed oath in which the president swears to "protect, preserve and defend the Constitution of the United States" imposes upon him the duties of a constitutional interpreter. It is the president's responsibility to understand and to apply the Constitution in times of ambiguity and crisis, such as these. And I would assert, secondly, that Justice Jackson is right: The Constitution is not a suicide pact. It is a document whose clauses should always be understood to favor sound government and the preservation of the American democratic experiment. It must never be interpreted to permit a handful of congressional representatives, defeated legislatively, to hijack the process and wreak willful havoc.

For what it is worth, I disagree with the wisdom of this idea.  In part, because it would further propel the ongoing argument that the President has unexplored powers that cannot be checked-- an argument that got us into the torture mess.  Further, I think other parts of the Constitution, entrusting a role for Congress in budget matters, cut strongly the other way.

What do you think?

Given the choice of violating one of three congressionally passed laws, because they conflict with each other, the President should choose one that comes with a constitutional defense. That one is the debt ceiling, which, I think, is basically unconstitutional in any case, given the 14th amendment. So he can spend what he was ordered to spend, pay the debts that were incurred under law, and borrow the money to do that, protected by the 14th amendment and its history.
I agree with you, Mark. For a president who is fighting the perception that he is taking the "imperial presidency" to another level,

rumor has it that the Obama Justice Department is researching the viability of overturning the 22nd Amendment by Executive Order (joke),

the whole specter of unilateral action under the guise of some amorphous emergency powers creates worse problems than it fixes.
I feel dread every time I search for news, kind of like checking in on a hostage situation. I don’t know about the Constitution but this is just not right and everybody involved seems to be getting away with it.
This not my area of expertise … yet I too would have concern about an imperial Presidency, yet I wonder how much the Republicans have forced Obama into this corner (if he wants to govern and get anything done) by obstructing the vast majority of his initiatives for political gain … to make him appear inept and ineffectual … and forcing his hand to move in unilateral ways (such as with judiciary appointments). It would appear Obama has brought some of this on himself (his not the convivial Reagan or Clinton by a long shot; at the same time John Boehner is no Tip O’Neil) … however, there is no way to reason with un-reasonable people or drunks (such as the Tea Party, drunk on their unyielding certainty).
I agree with CraigA...

Can I be a voice on the other side? In the wake of the Newtown massacre, when Congress considered doing what 90% of the American people, and 84% of NRA members, wanted--enacting universal background checks for gun purchases--Congress balked. The reason many Republicans gave: they knew it was an overwhelmingly popular piece of legislation, but they didn't want to give Obama a victory.

The frustration many Americans felt at that was assuaged only by the series of executive orders addressing gun violence Pres. Obama issued after the vote. The sense was, if people in Congress are going to act like irresponsible children and do nothing, at least the President is acting like a responsible adult and doing something.

In that sense, this feels different to me than Bush and torture. I don't believe the majority of Americans wanted torture, but they do want their goverment to function and our full faith and credit to be upheld.

All of you are absolutely right to raise the spectre of the imperial presidency; I fear that, too. But I confess that there is this small part of me would cheer if Obama acted to solve this problem if all else failed.
I've read a couple of popular articles on this topic in the past week or so, and I wonder if it would not work out a little differently, just as you have alluded to Mark.

Having run out of money, and Congress holding the power of the purse, the President would none the less be bound by the 14th. The consequence being that the first thing that would have to be paid is the debt. It is other things that would have to go unpaid, no?

Just a thought. I'm not at all sure this is right, but it seems plausible.
Excerpts: "So the debt-ceiling law places the President in what Buchanan and Dorf call a "trilemma," with no way out. Under the Constitution, he can't default, he can't unilaterally raise taxes, and he can't unilaterally borrow. In such a predicament, those scholars believe he is obliged to take the "least unconstitutional" approach, which, for reasons they outline, they think would be invalidating the debt-ceiling and issuing new debt -- which they call "Presidential debt," because it would have no Congressional authorization."

"Tribe and Balkin disagree. They think the President would be relegated instead to some sort of "prioritization" process, where he directs those limited funds available to him to making certain that the country honors its outstanding bond obligations -- the most unambiguous focus, they contend, of Section 4 of the 14th Amendment -- and to funding other absolutely essential functions while allowing most other obligations (salaries, entitlements, contracts, etc.) temporarily to go by the wayside, though this would obviously cause enormous pain and upheaval throughout the country."
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