Could someone who knows the Constitution and the 14th Amendment

[coalition_unwilling]

please explain in simple language how Obama can (or cannot, depending on your view) use the 14th Amendment to bypass Congress on the issue of raising the debt limit?

I keep seeing the "14th Amendment" tossed out there as some way that Obama can cut the Gordian knot. So I'd like to hear how the 14th Amendment allows the POTUS to bypass the Congress' powers in the Constitution around matters of the national debt.

[snappyturtle]

1. Thank you...I've been wondering the same. nt

[coalition_unwilling]

4. IIRC, only Congress has the power to authorize debt, articulated

in one of the articles proper of the Constitution (that having to do with the powers accruing to each branch). Until this latest 'cebt limit crisis,' I had never heard of the 14th Amendment being used to get around that Congressional authority.

Not saying it can't be done, just that I would like to know the rationale.

[Booster]

2. Thanks for asking this question. I don't know either.

[The Big Vetolski]

3. OK. Here's the relevant text of the 14th Amendment itself:

"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."

See that "validity of the public debt of the United States SHALL NOT BE QUESTIONED" part? That means there can be no constitutional debt ceiling if the debt was legal in the first place. Hence, There is no constitutional debt ceiling. Hence, all this bullshit about it is kabuki theater with some other goal in mind.

[DJ13]

6. +1

[coalition_unwilling]

7. Questioning the validity of existing debt is definitely not the same

thing as authorizing the issuance of new debt instruments. So if we have borrowed all the money statutorily that we can and Congress does not authorize an increase in the debt limit, I fail to see how the 14th Amendment allows the government to keep borrowing (absent further action by Congress).

Are there two separate issues here? Increased borrowing (requiring Congressional authorization) and default on existing debt (covered by the 14th amendment)?

[madinmaryland]

24. The one question I have is if Congress has approved a budget with "x" amount

of spending, then does that supersede the debt limit? If they have approved a budget, then haven't they already approved the borrowing for the debt?

:shrug:

[coalition_unwilling]

26. I'm no process wonk by any means, but the mere approval of a

budget must of necessity precede the act of voting appropriations for expenditures in said budget. I would think Congress' appropriations bills would require sources of funding (whether tax revenues or issuance of new debt). A budget is a mere road-map and set of destinations.

However, I may be being overly pedantic here or needlessly simplistic, depending on one's perspective.

[madinmaryland]

37. That then begs the question, if Congress has approved the appropriations bills

then can they rescind them using the debt ceiling. I don't know what has been appropriated as to this point, except for the Defense Department bill a couple of weeks ago. Interesting that one was passed. :grr:

[The Big Vetolski]

34. You make a good argument. There may indeed be two legal

questions. But is not the issue at hand whether or not to default on existing debt? Maybe not. But still, the debt ceiling has always been bullshit political theater. That's all it is now. Even Bill Clinton invoked the 14th Amendment argument yesterday.

Do you really think the Supreme Court would rule against an action that would prevent a default? Especially THIS Supreme Court?

[PoliticAverse]

14. But even that argument would apply only to currently issued "public debt"...

it wouldn't apply to the issuance of new debt. So the Government couldn't default on current
outstanding debt but couldn't necessarily spend any more by issuing new debt.

[napi21]

5. From Norm Goldman& several other attorney's, the President CAN invoke

the 14th Amendment IF there is a crisis. The only way Congress can have standing to go to the SCOTUS is via a 2/3 majority vote in both houses of Congress...which everyone has said cannot happen under current atmosphere. Even if they manage to get that super majority vote, SCOTUS wouldnt touch the case, NOT because they love Obama, but because they have no enforcement power. If the SCOTUS were to call the President and say stop, allhe has to say is NO, and what could they do? Nothing!

[DURHAM D]

10. IMO - it is not that Obama "can't" use it -

it is that he does not "want" to use it.

I understand why he doesn't want to use it. The propaganda shit storm that followed would be a distraction from the business of finding agreement on sweeping changes.

[riderinthestorm]

19. "business of finding agreement on sweeping changes"???!!!

What??

You really think the Rethugs have any intention of working with this president on ANYTHING??? They have now blatantly shown their hand which is to oppose EVERYTHING he does. There will never be a time when this Congress and this President have any cooperation together. That much is demonstrably true

[Yo_Mama]

17. No he can't

Nor would it in fact resolve the crisis, because since Congress never authorized the debt, the debt would not be legally valid. You think this is bad, just wait until people realize that Treasury is floating illegal debt issues.

The SC does take separation of powers cases very seriously; you are advocating that our President violate our Constitution, and this one is not going to do it. He isn't Andrew Jackson, you know.

[napi21]

25. As A Professor of law who was on the radio about a week ago, said

"The President can only invoke the 14th amendment WHEN THERE IS A CRISIS." IF congress fails to reach some kind of agreement to extend the debt ceiling before
Aug 2nd, there WILL BE a crisis, thus granting him the suthority to do so. I also disagree that those bods would be "non-authorized debt." It WOULD BE AUTHORIZED by the Constitution granted to the President by the Constitution during a crisis.

[former9thward]

29. Sorry your theory went out the window in 1803.

It was called Marbury v. Madison and no one has opposed it since. The SC would have authority to stop an unconstitutional action by the president.

[safeinOhio]

8. Article 1, Section 8 and possibly 7

Any way other parts of the Constitution may conflict with or at least temper that section of the 14th.. As I understand it, it would only be used in dire emergency because of the other parts of the document.

[PoliticAverse]

9. The theory is simple. The treasury can just issue more debt to repay old debt/interest...

because a default would be "to question the validity" of the current debt.

As to the cannot view, please read Laurence Tribe's article on this subject:
http://www.dorfonlaw.org/2011/07/guest-post-on-debt-ceiling-by-laurence.html

The lawyers for the Treasury Dept are with the 'cannots' as apparently is the President himself.

In simple terms the cannot view is only Congress has the power over the debt, due to the other parts
of the constitution.

[coalition_unwilling]

12. Yeah, but we currently run annual deficits that require actual

increases in the debt. IOW, we are not paying down the debt but actually increasing it each minute the government remains in operation. So while the 14th Amendment might be useful for rolling over existing debt, I fail to see how it can be used to add to the national debt.

Am I missing something here?

[PoliticAverse]

15. I don't think so...

But proponents would argue that already passed bills authorize the creation of new debt to
pay for those bills.

[CaptRandom]

11. no one can explain right now...

simply because it hasn't happened before. It would cause a constitutional crisis <minor or major, who knows> and what happens in the courts will set the precedent for future generations...


And THAT is what makes this option so scary. Given the damage that Bush2 did, could you imagine that twit with THAT kind of power?

[coalition_unwilling]

16. OK. If we are willing to set Obama up as a monarch (I am not), then

I can see how the President could authorize the issuance of new debt without any Congressional assent.

I think the constitutional crisis you allude to would lead to a crisis in investor confidence that would probably devastate global markets' functioning and make September 2009 look like a cakewalk by comparison.

Edited for typo and clarity.

[CaptRandom]

18. yup!...

These boys in DC are really playing with a loaded warhead launcher...

[coalition_unwilling]

21. I'm a layperson when it comes to global financial matters, but I have

read that a good portion of the global derivatives market uses US Treasuries to maintain required reserves. If the standing of those US Treasuries comes into question, that means that the reserves these financial institutions use also start to lose legitimacy. At a minimum, it would require those financial institutions to dump the US Treasuries and seek out more stable forms of collateral.

So the Repukes are willing to hold the global financial system hostage to their ideology of no increased taxes on the wealthy? Somehow that would seem to put the Repukes at odds with the global financial elite whose principal (npi) requirement is stable and trusted forms of collateral behind issuance of debt.

But, again, maybe I'm missing something.

[CaptRandom]

27. and that is what makes this thing so crazy....

[Yo_Mama]

13. It doesn't

The Constitution vests financial powers in Congress, not in the President. It's Section 8 of Article I.
Link to Section 8:
http://topics.law.cornell.edu/constitution/articlei#section8
Link to 14th:
http://topics.law.cornell.edu/constitution/amendmentxiv

Only Congress has the authority to borrow money on the credit of the United States. The authority of the President to do so lies solely in his function as the Executive to carry out the directions of Congress.

The section of the 14th people are citing just says

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.

Questioning the "validity" of the public debt means questioning the lawfulness of it. But no one is questioning the validity of the public debt already extant. Failure to raise the debt limit does not functionally require default on the debt, so even that argument is completely bogus. Instead, failure to raise the debt limit just means that spending has to be cut.

The SC has constantly ruled that in areas in which the Constitution gives joint authority over a function, when Congress legislates that will generally trump the authority of the Executive to do differently. But in this case, the Constitution gives the Executive no authority whatsoever to borrow money. Further, under the necessary and proper clause, it is clear that Congress can set a current debt limit and only authorize the Executive to conduct borrowing operations up to it.

Therefore criticism of Obama on this score is completely wrongheaded.

Text of Article I, Section 8:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

[coalition_unwilling]

20. Thank you. This was my understanding also until the past few weeks, when

I started seeing the '14th Amendment' tossed around as somehow conferring upon Obama (or any Prez) quasi-monarchical powers like those of the European monarchs of the middle ages.

As juvenile as the current batch of Repukes in Congress are, conferring monarchical powers upon any President sets a dangerous and horrifying precedent, as the Bush Junta decisively proved.

[Fool Count]

23. Thank you. If that exhaustive explanation is not clear enough

for some, then this "14th amendment" business is just another mindless cult without any
rational basis.

[Tx4obama]

30. Yes, The President CAN invoke the 14th amendment under his 'emergency powers'. n/t

[coalition_unwilling]

32. Obama alluded to this somewhat obliquely in his remarks, but also

said that WH attorneys had questioned whether the 14th Amendment trumps Article 1, Section 8. Obama seemed to be suggesting that the WH lawyers and he himself did not think the 14th trumped Article 1, Section 8.

[Yo_Mama]

35. Yeah, but legally the 14th doesn't give him any authority to borrow money

And do you know why this claim is legal bullshit?

Because the president's emergency powers derive from Congress. Therefore, Congress cannot authorize the president to do something that Congress itself constitutionally cannot do.

And in Section 9 - (Limitations on the powers of Congress) we find the following passage:
http://topics.law.cornell.edu/constitution/articlei#section9

No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of receipts and expenditures of all public money shall be published from time to time.

The president could probably use the 14th Amendment to force Congress to convene to debate the matter - the constitutional authority to do so is contained in Article II, Section 3:
http://topics.law.cornell.edu/constitution/articleii

He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.

Edited to add a link to Youngstown:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=343&invol=579

I still think this is the classic case about separation of powers. It still gets cited by the SC. And as explained there:

The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. ...
Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied.

[suston96]

22. The Fourteenth may not be found to cover these spasmodic events with our debt....

But if "the full faith and credit of the United States" is in the stranglehold of inflexible political partisanship then the Constitution should have a remedy for such dishonorable intransigeance. The financial lifeblood of the Republic, including the honorable payment of its debts, should not be subject to partisan politics.

So how do we fix the constitution to disable irresponsible partisan politics when such events are in danger of causing economic national, if not international ruin?

[Tx4obama]

28. Here's a related article

Defaults, Debt Ceilings and the 14th Amendment
http://www.cato.org/pub_display.php?pub_id=13297

[coalition_unwilling]

31. Not a big fan of Cato ordinarily, but this article seems pretty

balanced and non-delusional.

Thanks :)

[Tx4obama]

33. You're welcome. n/t

[Yo_Mama]

36. Yes, but since Congressional authorizations are made subject to the Debt Ceiling

You cannot claim that appropriated funds give the President the authority to borrow when Congress has passed legislation making its authority to borrow contingent upon the bleeping debt ceiling.

Here is a (thankfully) brief summary on the subject by the Congressional Research Service from February of this year:
http://www.fas.org/sgp/crs/misc/RL34680.pdf

Also, we are currently operating under a Continuing Resolution, and the general language for appropriations:
http://www.gpo.gov/fdsys/pkg/BILLS-112hr1473enr/pdf/BILLS-112hr1473enr.pdf

The following sums are hereby appropriated, out of any money
in the Treasury not otherwise appropriated, and out of applicable
corporate or other revenues, receipts, and funds, for the several
departments, agencies, corporations, and other organizational units
of Government for fiscal year 2011, and for other purposes, namely:

It is very difficult to create an authority to borrow funds for the Treasury from that!

[rustydog]

38. Section 4 of the 14th amendment

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.

[sudopod]

39. There is no magical "true" interpretation of the Constitution.

The Constitution is what the Supreme Court says it is, and it's stacked 5-4 against.

By against, I mean what would be fair or just.