Argument against using the 14th Amendment: Tribe / NYT [View All]

[flamingdem]

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http://www.nytimes.com/2011/07/08/opinion/08tribe.html?_r=1

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?

So the arguments for ignoring the debt ceiling are unpersuasive. But even if they were persuasive, they would not resolve the crisis. Once the debt ceiling is breached, a legal cloud would hang over any newly issued bonds, because of the risk that the government might refuse to honor those debts as legitimate. This risk, in turn, would result in a steep increase in interest rates because investors would lose confidence — a fiscal disaster that would cost the nation tens of billions of dollars.

Although an authoritative judicial declaration authorizing borrowing above the debt ceiling might alleviate investors’ fears, obtaining such a declaration is no easy task. Only someone who has suffered a “particularized” harm — not one shared with the public at large — is entitled to sue. It would be difficult to conjure up a plaintiff who has suffered such specific harm from an issuance of debt beyond the ceiling. And even if such a plaintiff could be found, increased interest rates would have already inflicted terrible damage by the time the Supreme Court ruled on the matter.

A core function of the Constitution is to “force us into a conversation” about our future, Mr. Obama once wrote. Sometimes, it does this by establishing principles citizens can invoke when they believe the government has overreached. At other times, it does so by directing us back to the political drawing board.

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