Debt ceiling: the nuclear option. Just blow it up!

[pnwmom]

http://www.huffingtonpost.com/2011/06/28/14th-amendment-debt-ceiling-unconstitutional-democrats_n_886442.html

WASHINGTON -- Growing increasingly pessimistic about the prospects for a deal that would raise the debt ceiling, Democratic senators are revisiting a solution to the crisis that rests on a simple proposition: The debt ceiling itself is unconstitutional.

"The validity of the public debt of the United States, authorized by law... shall not be questioned," reads the 14th Amendment.

"This is an issue that's been raised in some private debate between senators as to whether in fact we can default, or whether that provision of the Constitution can be held up as preventing default," Sen. Chris Coons (D-Del.), an attorney, told The Huffington Post Tuesday. "I don't think, as of a couple weeks ago, when this was first raised, it was seen as a pressing option. But I'll tell you that it's going to get a pretty strong second look as a way of saying, 'Is there some way to save us from ourselves?'"

By declaring the debt ceiling unconstitutional, the White House could continue to meet its financial obligations, leaving Tea Party-backed Republicans in the difficult position of arguing against the plain wording of the Constitution. Bipartisan negotiators are debating the size of the cuts, now in the trillions, that will come along with raising the debt ceiling.

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[dmr]

1. Interesting.

I would love to see the bullies getting their arrogant leverage pulled right out from them.

They'll cry that Obama broke the Constitution, though.

[tularetom]

2. The president would never go for this proposal

He believes in going into a fight with one hand tied behind his back.

[99th_Monkey]

3. The current Supremes alreagy have five thumbs down. What's the point? nt

[pnwmom]

4. The plain reading of the Constitution, and precedent,

would support this position. But it might not even get to SCOTUS.

From the link at the OP:

Adam Winkler, a law professor at the University of California, Los Angeles, said that the 14th Amendment option has recently been much discussed in the field.

"Without any clear case law about the debt ceiling in particular, no one knows exactly how the courts would rule on that issue, about whether President Obama could ignore the debt ceiling," he said. "If he wanted to continue to service the public debt, he'd probably get away with it."

Which leads to a related question: Who's to stop him?

"To have standing to challenge a governmental action, you must show that you have suffered some injury from that action, and it's hard for someone to show such an injury," Winkler said. "If Congress acted as a unified body, and claims that the president has usurped their authority, then it may have some standing."

"But," he cautioned, "it would have to be a joint resolution. And this Senate would almost certainly block it."

[99th_Monkey]

5. On an issue of this magnitude, where lines in the sand are being drawn publicly,

and the chips are down, this would get kicked up to Supremes quicker than a NY heart-beat.

I mean seriously, how long did it take for Bush v. Gore to get kicked up to SCOTUS? ... was is days or hours, I can't remember..

That said, I really appreciate the information, you make a good argument, and I like the power in your voice.

[pnwmom]

6. Maybe I'm being too hopeful, but one of the reasons the birther controversy

was never considered by the whole Supreme Court was the issue of status -- not every plaintiff has the status to bring a lawsuit. You need to be a true injured party. It would be hard to argue that anyone has been specifically injured by the U.S. NOT reneging on its valid debt. (Thanks to the 14th amendment, it would be much easier to bring a constitutional case arguing that the U.S. was not allowed to default on its debt. Theoretically, anyone with a Treasury note could bring such a case.)

In any event, the possibility that Obama could rely on the 14th amendment to justify ignoring the debt ceiling does give him some extra power in this game of debt-ceiling chicken. The Rethugs can't be certain that he will cave.

[99th_Monkey]

7. and maybe I'm being too pessimistic.

FYI, I am a staunch believer in poetic justice, the moral arch of the Universe being long but sure, and all that.

Plus it would be a bold move, which has been so sorely lacking with Obama imho, except to off OBL.

So thanks to you, I'm keeping an open mind on the matter.

[Jim Lane]

8. The five right-wingers would have a tough problem.

Obama would be spending money pursuant to appropriations bills passed by Congress. Would the Supreme Court order the President to disregard Congressional mandates?

That would be the most unprecedented judicial activism in the Court's history.

[pnwmom]

9. And to disregard the plain meaning of the 14th Amendment.

SCOTUS would surely have to twist itself into knots.

[BzaDem]

10. Unfortunately, I don't think that clause helps in the way you think.

That clause would seem to require that we pay what is owed on our bonds. But that was never the problem. We could not raise the debt ceiling for the next 20 years and still pay interest on our bonds using tax revenue coming in.

In other words, if the debt ceiling actually prevented us from paying what we owe on our bonds, then it would likely be unconstitutional. But it does not do that.

What the debt ceiling does do is prevent the US from spending money (already appropriated) that exceeds tax revenue, outside of our bonds. But there doesn't seem to be anything unconstitutional about that. One could creatively interpret "debt" to include non-debt that has been appropriated but not spent. But that would be a huge, huge stretch. The Supreme Court decision you cite certainly does not agree with that interpretation: it quite clearly says the word "bonds" over and over again.

This is not to say there might not be other legal issues with the debt ceiling. There might be issues that resemble the issues with impounding already appropriated funds. But these are entirely separate, have nothing to do with the 14th amendment, and are not nearly a slam dunk case. It also might be the case that no one has standing to challenge a President ignoring the debt ceiling. But if the President blindly ignored the debt ceiling and issued MORE debt to pay for appropriated spending (rather than simply paid existing debt), and the issue got to the merrits, the President would probably lose in any court they find themselves in (at least on the 14th amendment issue).

[pnwmom]

11. Here are two more articles on the topic, written by a constitutional lawyer

at the University of Baltimore. The second one I think addresses the point you are making.

http://www.theatlantic.com/politics/archive/2011/04/the-speech-obama-could-give-the-constitution-forbids-default/237977/

http://www.theatlantic.com/politics/archive/2011/05/our-national-debt-shall-not-be-questioned-the-constitution-says/238269/

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Section Four of the Fourteenth Amendment states, at its outset, that "he 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." This section was inserted into the Amendment because of a very real concern that Southern political leaders, and their Northern allies, would gain the upper hand in Congress in the 1866 or 1868 elections and vote to repudiate the national debt.

SNIP

Section Four was the response; its language is extraordinary. First, it does not simply say that the national debt must be paid; it says that its "validity ... shall not be questioned." Only one other section of the Constitution--the Thirteenth Amendment's proclamation that "either slavery nor involuntary servitude ... shall exist within the United States, or any place subject to their jurisdiction"--is as unqualified and sweeping.

Second, it suggests a broad definition of the national debt: "...including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion."

From this language, it's not hard to argue that the Constitution places both payments on the debt and payments owed to groups like Social Security recipients--pensioners, that is--above the vagaries of Congressional politics. These debts have to be paid, the argument would be, in full, on time, without question. If Congress won't pay them, then the executive must.

On the other hand, the language could be seen as simply forbidding outright repudiation, not temporary default. Default on U.S. bonds would, in this analysis, not dispute the "validity" of the debt; it would simply delay repayment. But remember the strict language. Suppose you lend $10,000 to your cousin. When the debt comes due, he says, "Listen, I'm good for the money, but I'm a little short right now. Trust me, I will get it to you sooner or later." That's not repudiation. But on the other hand, you might think the validity was now at least being "questioned."

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[Vinca]

12. But, but, but . . . the Republicans might get maaaaaaad.

We must negotiate. We must be bipartisan. We must hold hands and sing kumbayah.:banghead: