Can he or can’t he raise the debt ceiling citing the 14th Amendment? While only President Obama’s advisers know for sure, there are a lot of opinions in government, the media, and the academic world about this very interesting topic.
How interesting? The New York Times’ Adam Liptak asked four scholars about the issue in a very engaging story. One expert, Eric Posner, opined on what would happen if the issue ever came before the Supreme Court.
“It would be the most interesting case in decades,” he told Liptak.
While such an event is speculative and probably not likely in the near future, Liptak was able to get a lot of good quotes about the subject.
In a nutshell, the 14th Amendment supporters believe the president has the power to take actions, independent of Congress, to make sure the public debt is paid.
They believe in a broad interpretation of Section 4 of the 14th Amendment, which reads, “The validity of the public debt of the United States, authorized by law, including debts incurred for payments of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned."
Doubters believe the 14th Amendment language is specific to the period immediately after the Civil War; the application of such presidential powers isn’t in the spirit or intention of the Founding Fathers; or such an action taken, without precedent, would discourage investors from buying debt, thereby defeating the purpose of raising the debt ceiling.
Starting with Liptak’s article, here are 10 very compelling quotes to frame the debate. We’d like to hear your opinions in our comments area at the bottom of this story.
“The president has inherent emergency powers. … It has long been understood that the president should act to protect the country,” said Posner, in Liptak’s article.
In a separate Times op-ed, Posner says that Founding Fathers like Alexander Hamilton and Thomas Jefferson believed the head of the executive branch could “address serious unanticipated threats to public well-being.”
“Hamilton and Jefferson believed the president could act unilaterally to address serious threats not anticipated by the Constitution's framers,” he said.
Laurence Tribe from Harvard told Liptak that the Obama administration was correct to ignore the 14th Amendment argument.
“The president should hold firm, and not permit Congress to insist on holding its breath rather than doing its job of authorizing payment of the debts it has already incurred unless and until the president blinks on one of his signature initiatives,” Tribe said.
That matches the official stance of the Obama administration. On Thursday, White House press secretary Jay Carney issued the administration’s most definitive statement yet.
“The Constitution gives Congress—not the president—the authority to borrow money, and only Congress can increase the debt ceiling,” Carney said.
Earlier this week, another member of the Obama team shot down the 14th Amendment as a debt-ceiling tool.
“Our folks have never found that there was such extraordinary authority,” National Economic Council Director Gene Sperling said at a luncheon sponsored by Bloomberg News.
One 2012 research paper that is often cited in the debate is from Neil H. Buchanan of George Washington University and Michael Dorf of Cornell, who discuss the scenario of what happens when a president faces a debt-ceiling deadline.
Buchanan and Dorf wrote their case study after the 2011 debt-ceiling crisis and said in 2012, “there is reason to believe that a similar standoff could occur again.”
“Under a plausible description of the options President Obama would have faced had Congress failed to strike a debt-ceiling deal in August, 2011, every realistic option open to him would have violated some constitutional provision,” Buchanan and Dorf said.
The professors argue, in such a theoretical case, the president would have “no good choices and certainly no good constitutional choices. But choose the President must.”
“In the debt ceiling context, given the balance of constitutional, practical, and prudential considerations, the least unconstitutional choice would be for the President to continue to issue debt, in the amounts authorized by the duly-enacted budget of the United States,” they concluded.
Michael McConnell, a prominent scholar and former federal judge, wrote during the 2011 debt-ceiling debate on the Hoover Institution’s website about how the 14th Amendment argument was “bunk.”
“Section 4 of the 14th Amendment does not create a back-door method for the Administration to borrow more money without congressional authorization. For Congress to limit the amount of the debt does not ‘question’ the ‘validity’ of the debt that has been ‘authorized by law.’ At most, it means that paying the public debts and pension obligations of the United States, as they become due, has priority over all other spending.”
“The real effect of Section 4 of the 14th Amendment is almost the opposite of what hopeful voices in Washington are saying. Section 4 puts the onus on the president to reduce spending in order to avoid default on the debt. It does not permit him to borrow more,” he concluded.
It was back in 2011 when the argument over the 14th Amendment first took off—after some comments were made by former President Bill Clinton supporting the move.
Clinton told the National Memo that he would raise the debt ceiling “without hesitation, and force the courts to stop me”
In response, President Obama directly addressed the issue.
“I have talked to my lawyers. They are not persuaded that that is a winning argument,” he said in July 2011.
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