Even Larry Tribe Now Agrees: Fourteenth Amendment is a Viable Option. So Why Won’t Obama Use It?

[Karmadillo]

Not to keep you in suspense: Obama would prefer to cut Social Security & Medicare.

http://my.firedoglake.com/phoenix/2011/07/24/even-larry-tribe-now-agrees-fourteenth-amendment-is-a-viable-option-so-why-wont-obama-use-it/

Even Larry Tribe Now Agrees: Fourteenth Amendment is a Viable Option. So Why Won’t Obama Use It?

By: Phoenix Woman Sunday July 24, 2011 1:16 pm

Is the much-touted “Fourteenth Amendment option” a viable end run around the debt-ceiling nonsense that threatens to destroy the world?

Charles Grassley thinks so. Bruce Bartlett thinks so. Former president Bill Clinton definitely thinks so: He’s said he’d do it “without hesitation, and force the courts to stop me”.

As for whether the courts or anyone else would or could try to stop Obama should he invoke the Fourteenth, even Laurence Tribe, who is known to be close to the Obama administration — close enough to carry its water, as he blatantly did with his pronouncement earlier this month that the Fourteenth Amendment didn’t trump the debt ceiling legislation — has admitted that this is highly unlikely: “This is not a circumstance in which the courts have any plausible point of entry.” Tribe even went so far as to dismiss the threat of impeachment as “not politically a very plausible scenario.”

So, knowing all of this, and with so much on the line — why, then, won’t President Obama admit that this is an option? Why, instead, is he pushing to put Social Security and Medicare on the chopping block — and getting various liberal “Veal Pen” groups to echo his call for cutting Social Security?

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[Skip_In_Boulder]

1. Why won’t President Obama admit that this is an option?

Because one plays their trump card at the final hand.

[Andy823]

2. I agree 100%

You let the other side keep on cutting their own throats, then when it's pretty obvious to the majority of the country that republicans won't budge when it comes to protecting tax cuts for the rich, you hit them with the "last" card you have been holding, the trump card, and let the republicans try and get out from under the image they have paint for themselves and not wanting to help get this country out of the mess that they, and George W., got us into in the first place!

[Skip_In_Boulder]

8. Yep, that's how I see it.

From where I sit President Obama is being a much more aggressive player than what he has been in the past. But if he plays this right the Republicans could end up being the ones who get this crises hung around their necks and the President gets to come in and be the knight in shining armour that saves the day at the last minute.

[in_cog_ni_to]

12. I really hope that's what he's doing. Make the jerks cave or wait to play

the Ace in the hole.

[Skip_In_Boulder]

13. You and me both

But I like the setup here better than anything the President has done so far. But, we just have to hang tough and see how it plays out in the end.

[wiggs]

30. All he said was that the WH lawyers were not 'persuaded'. nt

[hlthe2b]

3. I suspect that he knows there are teabaggers out there....

that are just waiting for the provocation to commit violence in the manner of the Norway killer. The hate is there. The sense of persecution is stirred constantly by Faux and Limbaugh. The SS document the increasing intensity and volume of violent threats.

Are we boxed in by (and held hostage) by these hate mongers? I hate thinking that this may be holding Obama back from taking bold, but necessary action, but it certainly does come to mind..... :shrug:

[Renew Deal]

4. Who is Larry Tribe and why should I care?

Especially coming from FDL?

[The Velveteen Ocelot]

6. Tribe is one of the most respected constitutional experts in the U.S.

He's a Harvard professor, wrote a definitive treatise on constitutional law, was one of Obama's profs at Harvard.

The fact that it comes from FDL (which I have little use for) doesn't matter. Tribe is a big shot in constitutional law.

[Romulox]

10. Questions of Constitutional law don't turn on the opinion of various "experts".

There is no "right" answer to a question of Constitutional law--only the answer that can get 5 votes.

[Renew Deal]

14. There is no right answer?

I think some things are pretty cut and dry. There are plenty of 9-0 and 8-1 votes out there. This one is tricky. What I take from Obama's statement is that there is legitimate disagreement about the 14th Amendment. Most of the arguments I see are that it is a real option, but I don't know if that's because I'm on DU.

[Romulox]

17. Arguably, no question which has not been adjudicated is "cut and dry"

"There is no right answer?"

There *are* "right" answers, but they can only be determined, Queen of Hearts style ("first the verdict, THEN the trial!") after 5 SCOTUS Justices have voted for them.

[The Velveteen Ocelot]

25. Excep that the judges who make those decisions

pay a lot of attention to scholars like Tribe. Their law clerks probably took his classes, and almost certainly read his treatise. Unlike some other professions, experts like him are taken quite seriously.

[Romulox]

27. Scalia, Roberts, and Alito "pay a lot of attention to scholars like Tribe"???

Nope. They pay a lot of attention to scholars like Posner and their ilk. The point being, the Supreme Court is a political institution; Supreme Court cases are decided by the political leanings of the Justice, not by mathematical formulae.

[The Velveteen Ocelot]

29. My point was only that judges pay a lot of attention to legal scholars.

Which ones they pay attention to depends on a lot of things, including, obviously, their political inclinations. Of course Alito et al. would prefer Posner to Tribe, but that doesn't mean Tribe's opinions have no weight.

[bemildred]

7. Mr Tribe is well known, been around a long time.

http://en.wikipedia.org/wiki/Laurence_Tribe

Laurence Henry Tribe (born October 10, 1941) is a professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor at Harvard University. He also works with the firm Massey & Gail LLP on a variety of matters<1>.

Tribe is widely recognized as a leading liberal scholar of constitutional law.<2> He is the author of American Constitutional Law (1978), a treatise in that field, and has argued before the U.S. Supreme Court 35 times.<3>

[Renew Deal]

15. Sounds pretty knowledgable

[bemildred]

19. He is always worth a look. nt

[bemildred]

5. The "debt ceiling" makes a convenient political stalking horse, nobody wants to give that up.

Once you go the 14th amendment route, the "debt ceiling" straw man becomes unusable.

[warrior1]

9. if he does have to use it

it will have to be after the deadline and the crap has all ready hit the fan. At least that's what I had heard from a guy Rachel Maddow interviewed last week.

[former9thward]

11. No where at the link does Tribe say 14th is viable option.

That is just false.

[no_hypocrisy]

16. From Professor Tribe

But the president has very little authority to borrow money, Tribe wrote, without explicit approval from Congress, especially if Congress forbids it.

“The Constitution grants only Congress — not the president — the power ‘to borrow money on the credit of the United States,’” Tribe wrote. “Nothing in the 14th Amendment or in any other constitutional provision suggests that the president may usurp legislative power to prevent a violation of the Constitution. Moreover, it is well established that the president’s power drops to what Justice Robert H. Jackson called its “lowest ebb” when exercised against the express will of Congress.”



Read more: http://www.politico.com/news/stories/0711/58557.html#ixzz1T8LtucMJ

[DURHAM D]

20. That was from a few weeks ago.

Tribe has subsequently revised and extended his remarks. IOWs - he changed his mind.

[former9thward]

26. He has not changed his mind.

Post the link where he has changed his mind.

[NoodleyAppendage]

18. Because Obama has a deep-seated fear of displeasing "important" people.

Obama cares about what those he feels are "important" think about him, so he's not likely to act against them (as evinced by his political behavior and negotiating style). He doesn't care so much about the "little people" out in America. We're just pawns in his 13th dimensional chess game and are expendible in the process of feeding his ego.

I'm done with Obama, if you can't tell from my posts. Giving up the Public Option was a red flag for me, then there's been multiple instances of repeated "under the bus throwing" of progressive ideals that has turned me against ever voting for him again. And, don't give me that false/forced choice crap response either...

If we stand for nothing, we fall for anything. That's been the liberal/progressive problem for years now. I will NOT be feared into voting for corporate DINO types in 2012.

J

[Renew Deal]

21. I was right to be skeptical about FDL. This post is a misrepresentation of what Tribe said.

AKA a lie.

<snip>
Writing on the New York Times op-ed page, Tribe, who once called Obama the “best student I ever had,” said the idea that a president can use the 14th Amendment to borrow money without regard to Congress provides “the false hope of a legal answer that obviates the need for a real solution.”

“Several law professors and senators, and even Treasury Secretary Timothy F. Geithner, have suggested that section 4 of the 14th Amendment, known as the public debt clause, might provide a silver bullet,” Tribe said. “This provision states that ‘the validity of the public debt of the United States, authorized by law … shall not be questioned.’ They argue that the public debt clause is sufficient to nullify the ceiling — or can be used to permit the president to borrow money without regard to the ceiling.”

But the president has very little authority to borrow money, Tribe wrote, without explicit approval from Congress, especially if Congress forbids it.

“The Constitution grants only Congress — not the president — the power ‘to borrow money on the credit of the United States,’” Tribe wrote. “Nothing in the 14th Amendment or in any other constitutional provision suggests that the president may usurp legislative power to prevent a violation of the Constitution. Moreover, it is well established that the president’s power drops to what Justice Robert H. Jackson called its “lowest ebb” when exercised against the express will of Congress.”
<snip>

http://www.politico.com/news/stories/0711/58557.html

[dionysus]

22. gee... FDL pushing lies to slam Obama, who'da thunk it...

:rofl:

[jwirr]

23. This option can be used most effectively at the last minute. In an emergency.

If this is the only option left he will use it but not until it is clear to the American people that the rethugs left him no choice. Have patience.

[ProfessionalLeftist]

24. He doesn't WANT to. n/t

[librechik]

28. he is afraid what the Right, with a RW SCOTUS could do to him over this

they could draw it out forever, whining about how unconstitutional what Obama did was, then they might even try impeachment. Having the PuKKKes in charge in the House does not help anything.