The 14th Amendment, the Debt Ceiling and a Way Out

[Derechos]

WASHINGTON — A few days ago, former President Bill Clinton identified a constitutional escape hatch should President Obama and Congress fail to come to terms on a deficit reduction plan before the government hits its borrowing ceiling.

He pointed to an obscure provision in the 14th Amendment, saying he would unilaterally invoke it “without hesitation” to raise the debt ceiling “and force the courts to stop me.”

snip

The provision in question, Section 4 of the amendment, was meant to ensure the payment of Union debts after the Civil War and to disavow Confederate ones. But it was written in broader terms.

“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,” the critical sentence says, “shall not be questioned.”

snip

In recent weeks, law professors have been trying to puzzle out the meaning and relevance of the provision. Some have joined Mr. Clinton in saying that it allows Mr. Obama to ignore the debt ceiling. Others say it applies only to Congress and only to outright default on existing debts. Still others say that the president may do what he wants in an emergency, with or without the authority of the 14th Amendment.

http://www.nytimes.com/2011/07/25/us/politics/25legal.html?ref=us

[elocs]

1. You are, of course, aware what both Obama and Geithner have said about the 14th Amendment?

They said "no" but even if Obama did consider and thought he could use it why would he want to tip off his hand about it now?

[Derechos]

2. This article is a legal memo published by Adam Liptak of the NYT

and was written with the purpose of outlining the current debate among the legal community about this option.

The article does disuss briefly Obama's current stance on the subject, but I can't post everything from the article.

[elleng]

3. Good point, why would he want to tip his hand?

[TBMASE]

7. He'll have to figure out where the 14th allows him to borrow money on the credit of the US

which is a power held by congress

[dark forest]

4. I guess my problem

with this tactic is this: If Congress hasn't authorized the debt, has it been authorized by law?

[TBMASE]

6. Since only Congress has the power to borrow on the the credit of the US

it would be ridiculous for the president to believe the 14th amendment, somehow, transferred that authority to him...especially one who taught constitutional law

[Kingofalldems]

8. The President already said he doesn't have that power

I guess you missed that while typing talking points.

[TBMASE]

9. Talking points?

I didn't realize pointing out something directly from the Constitution was a "talking point"
And perhaps you missed the OP while you were attacking me. Best you go read it so you're up to speed with what's going on

[Cool Logic]

5. Word is, Clinton put it out there in order to see how it would play.

"law professors have been trying to puzzle out the meaning and relevance of the provision."

I don't know who invented this idea that the Executive branch is the "supreme" power, but I have been concerned by it. First, they discovered that the Executive has unilateral power to declare war. Now, the seek to create the unilateral power to borrow. What they overlook is it is the legislation to spend that has been enacted, not the legislation to borrow.

The power to borrow is delegated to the Congress in Article 1; accordingly, the Congress must publish, ratify and have signed into law, legislation that authorizes the borrowing. Spending and borrowing are separate and apart, requiring separate legislation, separate votes, separate signings. Additionally, spending and borrowing are separated in section 7, and section 8.

Article 2 delegates Executive branch powers, and says nothing about borrowing authority. The president is not a King and the 14th amendment was not intended to give the Executive branch the authority to usurp Congressional jurisdiction from the Congress.