HENDRIK HERTZBERG: Obama Must Ignore The Right If They Refuse To Honor The Constitution

[kpete]

The New Yorker has a great short piece about how it will be Obama's duty under the 14th amendment to ignore the right if they refuse to pass the debt ceiling bill, to countermand this by executive order I suppose. the 14th amendment says the government must pay its bills, the right claims to be constitutionalist, well here it is.


IMPEACH OBAMA!
BY HENDRIK HERTZBERG

............


The President is constitutionally sworn to “take Care that the Laws be faithfully executed,” but if he enforces the debt ceiling, established by one law, he cannot meet obligations that other laws command him to fulfill. Nor can he submit to blackmail, lest the Constitution be informally amended to provide that any law, duly passed by the House and the Senate and signed by the President (and, if challenged, upheld by the Supreme Court), may be effectively voided by the action of one faction of one party in one half of the national legislature. And he absolutely cannot permit default, the consequences of which would be global and catastrophic.

It is widely said that the Obama Administration has “ruled out” recourse to the fourth section of the Fourteenth Amendment. Not so. In 2011, when the Republicans test-drove their debt-ceiling gambit, Timothy Geithner, then the Secretary of the Treasury, read the section to a breakfast gathering of reporters. A squall ensued; the President calmed it, saying that “lawyers” had advised him that the Fourteenth was not a “winning argument.” Similarly cagey equivocations have been forthcoming this time around. Obama has been careful to keep the option on life support. At his news conference last Tuesday, he noted that there had been some discussion about his powers, under the amendment, to “go ahead and ignore the debt-ceiling law.” He continued:


Setting aside the legal analysis, what matters is that if you start having a situation in which there’s legal controversy about the U.S. Treasury’s authority to issue debt, the damage will have been done even if that were constitutional, because people wouldn’t be sure. . . . What matters is: what do the people who are buying Treasury bills think?


What also matters, of course, is: compared with what? In the end, Obama could have no honorable choice but to invoke the Fourteenth. There is little doubt that he would prevail. The Supreme Court would be unlikely even to consider the matter, since no one would have standing to bring a successful suit: when the government pays its bills, who is damaged? The House Republicans might draw up articles of impeachment, adopt them, and send them to the Senate, where the probability of a conviction would be zero. This would not be a replay of Bill Clinton and the intern. President Clinton was not remotely guilty of high crimes and misdemeanors, but he was guilty of something, and that something was sordid. Yet impeachment was what put Clinton on a glide path to his present pinnacle as a wildly popular statesman. President Obama would be guilty only of saving the nation’s economy, and the world’s. It would be all he could do to head off a post-Bloombergian boomlet to somehow get around another amendment, the Twenty-second, and usher him to a third term. ♦

MORE:
http://www.newyorker.com/talk/comment/2013/10/21/131021taco_talk_hertzberg

[gopiscrap]

1. Yup I agree

[VanillaRhapsody]

2. This is the REAL reason they are going to shut it down...

as soon as Pres. Obama does this....they will start Impeachment proceedings. That will also fail...but they will have cost the govt LOTS of money to do so...furthering instability. Remember their objective is the starve the govt of funds to "shrink it until it is small enough to drown in a bathtub".

[factsarenotfair]

6. Exactly.

[Buddha_of_Wisdom]

3. The debt ceiling law was established in 1917.

And it was established as a way to control costs for WWI.

And it was a bad law, and can be repealed.

But both political parties wants to use the law but they fail to forget to read the 14th Amendment which makes the debt ceiling law invalid.

I cannot believe it was not challenged before. It needs to be decided by the Supreme Court, and we'll see if the law is dead by then.

[Igel]

7. Does it?

The 14th amendment says that the public debt of the US, authorized by law, shall not be questioned.

The Constitution says that only the Congress can authorize public debt. And it makes this authority separate from approving the budget or spending bills.

The argument is that somehow these two provisions are actually the same, and that the authorization to spend is the same as the authorization to borrow. However, until the debt ceiling law was put in place every single authorization to borrow was separate from spending authority--and not necessarily part of the authorization to spend. If it was part of the spending bill, it was still explicit authorization. That only went for the first 130 years or so of the United States. For the next 95 years it was taken to be the case that authorization to spend and the ability to authorize debt were also distinct. In 2008 Obama had no problem opposing raising the debt ceiling--so a professor of Constitutional law that some here might value also didn't think it a valid course of action. He assumed, as had everybody for the previous 210 years, that the two were separate. Who knew that everybody was wrong until the current generation of self-appointed Brights? DU can show Obama a thing or two, for sure. The nitwit.

It's possible to make an argument. It's possible to make a lot of legal arguments. Some are sound, some are foolishness. Some get the courts' approval. Some fail in the courts. Some pass, but ought to fail because while they may be deemed short-term necessary given the intransigence of the litigants or the foolishness of the courts they're still long-term injurious. Some fail for many of the same reasons, but ought to pass. Just because the courts accept an argument doesn't mean that we all fall to our knees and genuflect before the all-encompassing wisdom.

Plessy was a mistake and was both law and approved by SCOTUS, the law of the land for 60 years (the same kind of "law of the land" that we hear cannot be challenged by "real" Americans). Brown was research-driven judiciary-produced public policy ... based on flawed sociological studies. Some legal arguments are approved by SCOTUS and are foolish.

In this case, the President would do long-term damage to the Constitution. Now it's necessary for the President to assume the Congress' authority to issue debt. But hey, the Congress hasn't passed a budget, and we need a budget, so the President can just impose a budget, too. We need legislation, and the authority to issue debt and authorize spending is no less Congress' than the authority to pass legislation, so why not just issue a few laws here and there? Heck, the President can already delay laws unilaterally, and decide which ones to enforce and not enforce. Small difference, adding a law to enforce. The President can already de facto declare war, and many want him to be able to declare de jure war.

We already have some few President Obama backers calling for a lot of this. And for more--rounding up opponents, for example. With those athletic kinds of supporters, who needs enemies? That kind of support is taken as evidence against a person's character already--Cucinelli's less of a person because of the people who endorse him.

Then at some point somebody dares to notice out loud that there is no Republic, and the official demise is recorded as being a speech act in which the Republic is annulled but no actual power changes hands. Probably to thunderous applause of a million or two who constitute the 99% of a population of 300 million. (We know that politics makes people math-stupid.)

It's not by accident that in a different setting the author of "1984" called the "evolved" views o many that he had considered political allies "liberal fascism."

[kentuck]

12. And the President must execute the laws....

So..

[oswaldactedalone]

4. With little other info or knowledge

to go on regarding the specifics of this amendment and any other statutes that might apply, I say I would hold President Obama to heroic status if he did this.

Please explain why it's a bad idea to take all measures to save the US and world economies.

[Kablooie]

5. If the Obama singlehandedly prevents economic meltdown in the face of legal uncertainty.

He will become a historically admired world hero.

The people who created the situation will try to bring him down but they will be seen as petty villains by most.

It will still be a struggle for Obama to defend himself afterwards but I can't imagine the country turning against him after saving the country from economic destruction.

On the other hand if he allowed everything to crash, even if he had no legal way to prevent it, he will be attacked for not living up to his duties as president and there could be a chance of a successful impeachment because so many people will be hurt.

[dkf]

8. Not like he isn't already ignoring the constitution. He might as well just go full bore.

Specifically the 4th.

[wtmusic]

9. kick

[kentuck]

10. yep

http://www.democraticunderground.com/10023846155

[flamingdem]

11. Why should Obama take this upon his shoulders?

It's too much to ask one man to endure the stress of the attacks that will follow due to congress incompetence and teabag sedition.