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Jun 29 2011

The Constitutional Game of Chicken: The Debt Ceiling & The 14th Amendment (Up Date)

(10 am. – promoted by ek hornbeck)

The 14th Amendment of the United States Constitution:

Section 4:

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.

Republican economist Bruce Bartlett, who believes that the Republicans are playing with “the financial equivalent of nuclear weapons”, argues that Section 4 renders the debt ceiling unconstitutional, and obligates the President to consider the debt ceiling null and void.

. . . .I believe that the president would be justified in taking extreme actions to protect against a debt default. In the event that congressional irresponsibility makes default impossible to avoid, I think he should order the secretary of the Treasury to simply disregard the debt limit and sell whatever securities are necessary to raise cash to pay the nation’s debts. They are protected by the full faith and credit of the United States and preventing default is no less justified than using American military power to protect against an armed invasion without a congressional declaration of war.

Furthermore, it’s worth remembering that the debt limit is statutory law, which is trumped by the Constitution and there is a little known provision that relates to this issue. Section 4 of the 14th Amendment says, “The validity of the public debt of the United States…shall not be questioned.” This could easily justify the sort of extraordinary presidential action to avoid default that I am suggesting.

snip

Constitutional history is replete with examples where presidents justified extraordinary actions by extraordinary circumstances. During the George W. Bush administration many Republicans defended the most expansive possible reading of the president’s powers, especially concerning national security. Since default on the debt would clearly have dire consequences for our relations with China, Japan and other large holders of Treasury securities, it’s hard to see how defenders of Bush’s policies would now say the president must stand by and do nothing when a debt default poses an imminent national security threat.

Mr. Bartlett is not alone, Garret Epps, journalist and professor of law at Baltimore University, agrees and proposes the President should give a speech declaring, ‘The Constitution Forbids Default’.

Democratic members of the Senate, too, have begun exploring the possibility of declaring the debt ceiling unconstitutional:

“This is an issue that’s been raised in some private debate between senators as to whether in fact we can default, or whether that provision of the Constitution can be held up as preventing default,” Sen. Chris Coons (D-Del.), an attorney, told The Huffington Post Tuesday. “I don’t think, as of a couple weeks ago, when this was first raised, it was seen as a pressing option. But I’ll tell you that it’s going to get a pretty strong second look as a way of saying, ‘Is there some way to save us from ourselves?'”

By declaring the debt ceiling unconstitutional, the White House could continue to meet its financial obligations, leaving Tea Party-backed Republicans in the difficult position of arguing against the plain wording of the Constitution. Bipartisan negotiators are debating the size of the cuts, now in the trillions, that will come along with raising the debt ceiling.

Sen. Patty Murray (D-Wash.), head of the Democratic Senatorial Campaign Committee, said that the constitutional solution puts the question in its proper context — that the debate is over paying past debts, not over future spending.

“The way everybody talks about this is that we need to raise the debt ceiling. What we’re really saying is, ‘We have to pay our bills,'” Murray said. The 14th Amendment approach is “fascinating,” she added.

Let the games continue.

Up dates below the fold.

Up Date: It seems that a lot more people have picked up on this:

From Constitutional Law Professor Jonathan Turley:

The argument goes that, by not lifting the debt limit, Congress is “questioning” “the validity of the public debt of the United States.” Under this logic, advocates are encouraging President Obama to simply pay the debts in accordance with the Constitution. That would be an extreme step that would add a constitutional crisis to an economic crisis.

The “authorized by law” clause could present an interesting debate since the debt ceiling is part of a federal statute – though conversely so is the obligation to pay things like social security.

The language is certainly written in absolute terms but it is not likely that a court would rule that it makes a failure to lift the debt ceiling unconstitutional. Congress can argue that it fully intends to pay its debts, but that there is a political dispute over how and when. They can argue that they were not challenging the “validity” of the debt but the priority in the payment. The United States will still be fully liable for the debt and the interest.

Of course, as with the Libyan War, the Administration could trigger the constitutional fight on the belief that no one will be able to get standing to challenge its payment of the debt.

-As soon as the video of his appearance on Countdown is available, I’ll post it-

The argument about “Standing” is also proffered by Adam Winkler, a law professor at the University of California, Los Angeles:

Without any clear case law about the debt ceiling in particular, no one knows exactly how the courts would rule on that issue, about whether President Obama could ignore the debt ceiling,” he said. “If he wanted to continue to service the public debt, he’d probably get away with it.

Which leads to a related question: Who’s to stop him?

“To have standing to challenge a governmental action, you must show that you have suffered some injury from that action, and it’s hard for someone to show such an injury,” Winkler said. “If Congress acted as a unified body, and claims that the president has usurped their authority, then it may have some standing.”

“But,” he cautioned, “it would have to be a joint resolution. And this Senate would almost certainly block it.”

Jon Walker at FDL asks, Is There Any Legitimate Constitutional Defense of the Debt Ceiling Vote?

In all honesty is there anyone who can actually make a semi-possible argument for the debt ceiling vote actually be constitutional?

I would actually like to hear one. It would seem any constitutional argument that would say Congress can vote on whether or not we pay our public debt would also need to imply that Congress can also simply choose to ignore basically every constitutional clause as long as they provide any flimsily excuse about the language.

President Obama refusal to use the 14th amendment as it was intended or at least bring up the possibility of using it to gain leverage, speaks volumes about what he actually wants out of the situation.

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