14th Amendment & Perry v US quoted by Harkin - any legal experts here?

[Tennessee Gal]

Harkin says a Supreme Court case in 1935, Perry versus the U.S., addressed the issue. Harkin says the ruling said congress has the power to borrow and spend money, but it does not have the power to ignore or violate the terms of a lending instrument. “In other words, we don’t have the authority to not pay the bills,”Harkin said.

Link to the case: http://newdeal.feri.org/court/294us330.htm

I saw this: "The Fourteenth Amendment, in its fourth section, explicitly declares: 'The validity of the public debt of the United States, authorized by law , ... shall not be questioned.' While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the Civil War, its language indicates a broader connotation. We regard it as confirmatory of a fundamental principle which applies as well to the government bonds in question, and to others duly authorized by the Congress, as to those issued before the amendment was adopted. Nor can we perceive any reason for not considering the expression 'the validity of the public debt' as embracing whatever concerns the integrity of the public obligations."

[former9thward]

1. It is an irrelevant point.

No one is saying -- don't pay bills. But if the debt ceiling law can be ignored then any law dealing with federal revenue can be ignored. The federal government gets revenue from many sources -- taxes, fees, borrowing, fines, etc. If the 14 A says the debt ceiling law can be ignored then any of those other laws could be ignored also. The president could change tax rates all by himself to get more revenue. It would go nowhere in court.

[trayfoot]

8. Harkin is ABSOLUTELY correct!

It is the Executive's (the President) job to implement the laws passed by Congress AND that includes the duty to make sure appropriations are honored and paid. Nixon got into trouble with "impoundment" - the process of refusing to spend the money that Congress had appropriated. Nixon found out he could NOT refuse to implement that which Congress passed. Since the damn reTHUGs and pee partiers have created a constitutional crisis, it will soon become the DUTY of the President to fix it! They can scream, cry, threaten, etc., but the country will be saved from economic chaos, and that will be it!

[Tennessee Gal]

9. What did Nixon do? Don't remember that. nt

[Tennessee Gal]

10. Found it.

The Congressional Budget and Impoundment Control Act of 1974 provides that the president may propose the rescinding of specific funds, but that rescission must be approved by both the House of Representatives and Senate within 45 days. In effect, this has removed the impoundment power, since Congress is not required to vote on the rescission and has ignored the vast majority of presidential requests.

[trayfoot]

11. Sorry, I stepped away from the computer for a minute

but I see you found it. President Obama would be breaking the law if he did NOT issue an EO to raise the Debt Ceiling in the event that the idiots in Congress fail to do their job.

[Tennessee Gal]

13. Good point.

Not sure doing it by EO would be legal.

[former9thward]

15. You are way off on your history.

Impoundment started under FDR and his successors expanded it. Under an 1987 law presidents can't withhold money for policy reasons but can withhold it for emergencies. http://supreme.justia.com/constitution/article-2/37-impoundment-of-appropriated-funds.html

[trayfoot]

16. Impoundment

Impoundment
A traditional budgeting procedure by which the President of the United States once could prevent any agency of the Executive Branch from spending part or all of the money previously appropriated by Congress for their use. He would accomplish this, in essence, by an executive order that would forbid the Treasury to transfer the money in question to the agency's account. (The Constitution provides that no money from the Treasury can be spent without a specific Congressional appropriation, but it is silent on the question of whether all money appropriated by Congress actually has to be spent.) All American presidents since John Adams asserted the right to impound appropriated funds, and presidents often used this as a way of making relatively small cuts in Federal spending on programs that they deemed unwise or unnecessary, despite occasional murmurings of dissatisfaction from Congressmen annoyed by the cancellation or trimming of some of their pet pork-barrel projects. In 1973-1974, however, President Nixon made unusually large-scale use of impoundment in his efforts to fight the unusually serious inflationary pressures of the time by trimming back the budget deficit. President Nixon impounded nearly $12 billion of Congressional appropriations, which represented something over 4% of the spending Congress had appropriated for the coming fiscal year. Congressional leaders, who were already up in arms against the Nixon White House because of the Watergate scandal, rebelled against the implicit presidential rebuke of their judgment and authority over spending decisions posed by such large-scale impoundment. In 1974, Congress passed legislation purporting to make the old practice of presidential impoundment illegal and legally requiring the Executive Branch to spend every last penny that would ever be appropriated for it by Congress in the future. The administration denied that Congress had the constitutional authority to over-ride the President's control over the executive branch agencies in this manner, but a Federal Court eventually upheld the Congress's position on this matter, and the new Ford Administration chose to acquiesce in this lower court ruling rather than to further antagonize the already hostile Congress with an appeal to the Supreme Court.



http://www.auburn.edu/~johnspm/gloss/impoundment

[trayfoot]

17. I never said it started with Nixon,

but it definitely end with him - used as a tool to circumvent Congress!

[wizstars]

12. Here's an interesting quote from that decision:

"Having this power to authorize the issue of definite obligations for the payment of money borrowed, the Congress has not been vested with authority to alter or destroy those obligations."

I'm not enough of an expert to say if that is a meaningful ruling or not, but on its face it would put the burden on Congress to continue to pay its bills. And it might be construed to give the President a basis to raise the debt limit on his own. Certainly there are arguments both ways, and I haven't yet heard anyone smart enough to resolve it all definitively.... :shrug:

[Tennessee Gal]

14. That is a very relevant quote.

Thanks.

[Horse with no Name]

2. he is correct.

Which is why raising the debt ceiling is usually just general housekeeping. Congress acknowledges the debt and then it is raised to meet the Constitutional requirements and they move on.

This is TRULY a Constitutional Crisis, yet I have not heard ANY of the punditry call it that...perhaps because a Constitutional remedy is the only Constitutional solution that should be acknowledged.

The republicans are holding this country and its debt HOSTAGE for political gain. THAT IS UNCONSTITUTIONAL. They are breaking the law.

AFAIAC, Obama just needs to stop the drama queens in their tracks and use the power he has been given and solve it so we can move on. This entire theater surrounding this has been surreal.

[Tennessee Gal]

3. 2 replies so far and 2 opposing opinions - interesting nt

[newmexicodem]

4. It would be risky

The problem with the 14th Amendment is it is vague. The 14th Amendment does say the public debt of the US, authorized by law, shall not be questioned. It doesn't give specific authorization to the President to make this happen. It might be too vague in essence especially if the debt ceiling has been standard procedure being approved by Congress via votes.

The 14th Amendment has too much risk/reward. Short-term it solves our fears about avoiding default. By at what expense? Supreme Court injunction against the President? POssible contempt of court if Obama refuses to back down after a possible order from USCOTUS?

Do we really want the lunatics in Congress spending the next 6 months with hiring another Ken Starr and creating a circus. It will be Bill Clinton all over again. Impeachment(courtesy of majority in the House) with acquittal in the more sane level-headed Senate. And then a dark cloud hanging over BO's head during re-election.

IMHO....It is better if Reid and Dems conceded to the Balance Budget Amendment provision in condition to revenue/tax loophole elimination

Increase Senator Reid's current $2 trillion spending cut bill and add another $2 trillion in tax revenue addition to come with a total of $4 trillion figure deficit reduction. Force the GOP to eliminate corporate tax breaks and then let them know in 2013 in exchange for their concession to including revenues.....the debt ceiling debate will depend 100% on the passage of the Balance Budget Amendment. Hopefully by then Dems will have the majority and the debate will be moot.

[Tennessee Gal]

5. But what is your opinion on the case quoted by Harkin?

Harkin believes it has bearing on the right of a President to invoke the 14th.

[cascadiance]

6. Arguably they could impeach him for NOT following the constitution and the 14th amendment too...

If the logic is that Obama had the option to pay using the 14th amendment and didn't do so, there could be an impeachment made that Obama didn't "follow the constitution" to do his duties and protect America's reputation in credit markets.

That would also be the Republican way to trap Obama into a corner where he's damned if he does, and damned if he doesn't.

If that's the case, Obama is far better off to USE the 14th amendment, which keeps our economy intact and does the RIGHT thing, and solidifies the base behind him too. It would be hard to impeach and convict him on that. As Harkin noted, other presidents in the past have took such risks in other similar situations, and when using their best judgement weren't called to question, because those who might have wanted to go after them then, knew they would be fighting a losing battle. Arguably going after Clinton for a blow job and lying about it is in that middle area where it reflects badly on his character, but did it affect the nation tragically with his lying? Arguably not either way. Obama's decision WILL though have deep ramifications on what happens in this country. And that is the big difference.

[zeemike]

7. I guess I have been watching to many movies.

I would like to see Obama issue an EO that raised the debt ceiling and come on TV and tell us he did it because the congress failed to act and is disfunctional..and he would make more decisions for them if necessary because he took an oath to abide by the constitution and that something had to be done to save us economically.
Sure we know what a commotion that would cause....they would be talking about assassinating him and demand immediate impeachment and crate a great stink
But it is going to have to happen sometimes you must stand up to bullies. or we will just have to knuckle under the bullies....give them our lunch money and tip toe around them.

The real world is never like that.