Should Obama invoke the 14th Amendment and bypass Congress?

[Ivan Seeking]

If Congress fails to act, should Obama follow the advice of Bill Clinton?

Bill Clinton recently revealed that if he were in office now that he would “without hesitation” use the 14th Amendment to justify ignoring the congressional debt limit. He was less clear about whether he thought it was constitutional, claiming that he would force the courts to rule on the issue. Here’s how the former president framed his argument...

http://blogs.forbes.com/jerrybowyer/2011/07/20/four-questions-for-obamas-14th-amendment-courtiers/

Section 4. The 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. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

I would want to spend time with legal experts to gain clarification, but yes, if it seems that he can legally do this, it seems to me a better option than allowing the tea party to destroy the full faith and credit of the US. In fact, I would argue that in a crisis Obama is required to do this in the interest of national security. The tea party cannot be allowed to ruin a highly fragile and struggling economy. We cannot allow a 30% voting block to break us due to some wildly misguided ideology.

Recall that these are many of the same folks [Republicans] who would have allowed global economic collapse back in 2008, and voted against the bank bailouts.

 

[Jack21222]

I think he should certainly try, even if only to force the courts to make a ruling. It's a fairly hairy legal issue if you ask me, but I am not a lawyer. I'd like the courts to clear it up one way or another.

 

[russ_watters]

As bad as I think it is for him to violate federal law regarding the regulation of nuclear power, I think it is much much worse to directly violate the Constitution itself. I can't think of a worse abuse of Presidential power than to usurp the legislative branch.

Yeah, I'm against that.

...it seems to me a better option than allowing the tea party to destroy the full faith and credit of the US.

You present it as if the two choices are to violate the constitution or allow the country to default. There's a third option, of course...

 

[mege]

That 'wildly guided ideology' increased our country's spending by 25% over the past few years?

Who's crisis is this really?

 

[Jack21222]

I think it is much much worse, to directly violate the Constitution itself.

It could be argued that NOT ignoring Congress would ALSO be directly violating the Constitution itself, namely the 14th amendment. That's what this thread is about. I don't see a problem with letting the courts decide.

 

[russ_watters]

It could be argued that NOT ignoring Congress would ALSO be directly violating the Constitution itself, namely the 14th amendment. That's what this thread is about. I don't see a problem with letting the courts decide.

I have yet to see anyone make an argument that Obama can, much less must invoke the 14th Amendment and overrule Congress here. If you have one, I'd be most interested in hearing it.

This guy helped teach Obama Constitutional law and says that this would be a clear violation and Obama knows it:

But Laurence Tribe, a constitutional scholar at Harvard University, argues that only Congress has the authority to regulate U.S. debt. He said any presidential attempt to continue borrowing without congressional approval would therefore violate the constitution, and the Treasury Department agrees.

“The Constitution explicitly places the borrowing authority with Congress, not the president,” George Madison, the Treasury’s general counsel, said in a statement. “Secretary Geithner has never argued that the 14th Amendment to the U.S. Constitution allows the President to disregard the statutory debt limit.”

Tribe, who was one of Obama’s professors in law school, said the president understands constitutional law “as well as anyone.”

“He would have no illusions about his constitutional authority in this context,” Tribe said.

http://blogs.abcnews.com/thenote/2011/07/14th-amendment-a-debt-ceiling-back-up-plan.html

Don't make the mistake of believing that two wrongs make a right: that if it is a violation of the Constitution for Congress to default on the debt that that means Obama would be upholding the Constitution to seize that power from them. It doesn't work that way.

 

[russ_watters]

Also:

I don't see a problem with letting the courts decide.

I'm not sure that's one of the options, but I'm quite certain it isn't the only option. The courts don't pick their cases and can't just step in if Obama issues an illegal executive order. If Obama violates the Constitution here, Congress can probably sue him, but they can also impeach him.

 

[Hurkyl]

I would want to spend time with legal experts to gain clarification, but yes, if it seems that he can legally do this, it seems to me a better option than allowing the tea party to destroy the full faith and credit of the US.

Politically, it looks like a brilliant plan. It would let him strong-arm the opposition, but still have a way out if they call his bluff. And maybe even let the executive branch wrest some power from the legislative branch if you can spin it so it's too politically dangerous to challenge the maneuver.

Of course, I don't like playing politics.

 

[turbo]

If Congress does not want to spend X amount of dollars, they should not appropriate those dollars nor vote to spend them. If they want to hand Obama a "defeat" based on their own reckless spending, they should not draw a line in the sand regarding the 14th amendment, since they were responsible for that spending. I can't see why there is a "debt-limit" since Congress decides what they want to spend money on every single year. If they have agreed to spend that money and have agreed how to apportion it, why is it necessary to keep authorizing higher and higher debt limits? It seems like a childish game, at best.

 

[StevieTNZ]

But not a single problem has been solved by either the state or central bank financed bailout program in the United States for troubled banks, or the rescue in the EU for the risk of insolvency of states in the PIIGS group. The debt burden was not rescued but merely shifted over to the government account, postponing the crisis, not resolving it.

- From Brave New Economy
http://au.wiley.com/WileyCDA/WileyTitle/productCd-1118004418.html

Not increasing the debt limit, and defaulting would really stuff up all economies in the world. We'll be going backwards again.

 

[BobG]

I agree with turbo in spirit. How do you pass a budget that sends you over the debt limit and then claim the power to prevent the US from exceeding the debt limit? This is a lame game. It doesn't pass the common sense test.

I think the idea of invoking the 14th Amendment is absurd, though. Talk about taking a comment out of context.

Section 4. The 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. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

The intent of this clause was to deny the validity of any debts the Confederacy ran up to foreign countries or American businesses, individuals, etc.

In essence, it says, "Debts on this side of the line are valid - debts on that side are not."

 

[Jack21222]

I have yet to see anyone make an argument that Obama can... invoke the 14th Amendment and overrule Congress here. If you have one, I'd be most interested in hearing it.

Is this a joke? Bill Clinton makes this argument. There's a link that says so in the very first post in this thread. Did you seriously not bother reading to see what the thread was about before responding?

 

[WhoWee]

If Congress does not want to spend X amount of dollars, they should not appropriate those dollars nor vote to spend them. If they want to hand Obama a "defeat" based on their own reckless spending, they should not draw a line in the sand regarding the 14th amendment, since they were responsible for that spending. I can't see why there is a "debt-limit" since Congress decides what they want to spend money on every single year. If they have agreed to spend that money and have agreed how to apportion it, why is it necessary to keep authorizing higher and higher debt limits? It seems like a childish game, at best.

If the election last fall didn't change the persons in the House from a Democrat majority to a Republican majority - I would agree with you. This House leadership is trying to undo the damage caused by the Nancy Pelosi lead House. Unfortunately, Harry Reid still controls the Senate and even though he was against raising the debt ceiling in 2006 he is now for raising it - I need a score card to keep track.

However, I believe there is a reasonable solution. We should add up all of the future unfunded spending commitments now in place and add those to the accumulated deficit and let President Obama (sign his name to and) agree to increase the debt ceiling to that number. He wants a BIG DEAL - they should give him one.

 

[russ_watters]

Is this a joke? Bill Clinton makes this argument. There's a link that says so in the very first post in this thread. Did you seriously not bother reading to see what the thread was about before responding?

Did you? Clinton made no such argument. 'I would do it' (paraphrase) is not an argument that it is constitutional. Heck, what was implied by his statement implies to me is 'i don't know or care.'

And considering his personal experience, he may have a different perspective on if one should mind being impeached.

 

[Astronuc]

Congress Continues Debate Over Whether Or Not Nation Should Be Economically Ruined
http://www.theonion.com/articles/congress-continues-debate-over-whether-or-not-nati,20977/

Actually, I thought they were debating over the best way to ruin the economy.

A chronic deficit leads to greater indebtedness, which is the opposite of prosperity.

It's mindboggling that the federal debt should exceed the annual GDP.
http://www.bea.gov/newsreleases/national/gdp/2011/pdf/gdp4q10_adv.pdf (2010 GDP ~$14.6 to $14.9 trillion - depending on source)

http://www.usgovernmentspending.com/federal_deficit_chart.html

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

As of June 29, 2011, the Total Public Debt Outstanding of the United States of America was $14.46 trillion and was approximately 98.6% of calendar year 2010's annual gross domestic product (GDP) of $14.66 trillion.

 

[WhoWee]

Congress Continues Debate Over Whether Or Not Nation Should Be Economically Ruined
http://www.theonion.com/articles/congress-continues-debate-over-whether-or-not-nati,20977/

Did you vote on the poll (in your link)?
There are 2 choices yes or no to the question:
"Should the nation be allowed to fall into economic ruin?"

 

[russ_watters]

If Congress does not want to spend X amount of dollars, they should not appropriate those dollars nor vote to spend them.

You are absolutely correct that Congress would at least be contradicting itself by passing laws to fund things, then later failing to approve release of the money. That kind of contradiction comes with a government that changes hands every now and then: the party that passed those spending laws is now no longer in power and the party in power doesn't want to do that spending.

But of course, that has nothing whatsoever to do with whether or not it is OK for Obama to violate separation of powers by usurping Congress's authority.

 

[BobG]

If the election last fall didn't change the persons in the House from a Democrat majority to a Republican majority - I would agree with you. This House leadership is trying to undo the damage caused by the Nancy Pelosi lead House. Unfortunately, Harry Reid still controls the Senate and even though he was against raising the debt ceiling in 2006 he is now for raising it - I need a score card to keep track.

And the logic is that if you don't agree with a law legally passed by Congress, you don't have to abide by it?

Doesn't matter which party is in the majority - a law or bill passed by Congress is a law or bill passed by Congress. The solution is to repeal the bill legally; not play asinine games.

 

[russ_watters]

And the logic is that if you don't agree with a law legally passed by Congress, you don't have to abide by it?

Doesn't matter which party is in the majority - a law or bill passed by Congress is a law or bill passed by Congress. The solution is to repeal the bill legally; not play asinine games.

I agree with you and turbo that the debt ceiling game is silly, but again, both sides are playing. I'd even say the democrats started this round by passing a budget when the money didn't exist to fund it. All republicans are doing here is not passing a new law to bail the democrats out of their contradiction.

 

[WhoWee]

And the logic is that if you don't agree with a law legally passed by Congress, you don't have to abide by it?

Doesn't matter which party is in the majority - a law or bill passed by Congress is a law or bill passed by Congress. The solution is to repeal the bill legally; not play asinine games.

Perhaps the Congress that spent the money should have made sure the funds were available - before passing the Billl(s)? Again, we should be looking at the cost of ALL unfunded liabilities NOW and charting a course to either find funding or eliminating the obligations - anything else (I agree) is an asinine game.

 

[mheslep]

I believe the question is moot. It's likely a practical impossibility for the executive to hold a bond auction where the buyers would be uncertain about the validity of the pieces of paper they receive in return for their billions. This is as it should be.

 

[mheslep]

... I'd even say the democrats started this round by passing a budget when the money didn't exist to fund it. ...

Recall that the Democrats passed no such budget at all in the last years of their control.

 

[BobG]

I agree with you and turbo that the debt ceiling game is silly, but again, both sides are playing.

Absolutely!

The 14th Amendment idea is a very powerful step in the race to decide which party is nuttiest.

As is the idea that Congress should be negotiating with each other over whether the government should continue to pay its debts.

Things have gone way beyond worrying about which party started it. Forget a Balanced Budget Amendment. We need an amendment that prohibits hallucinogenic drug users from becoming politicians! (The fact that such an amendment would have eliminated our last three Presidents is a pretty sad statement about who the hell we're electing to office.)

 

[Amp1]

By Russ
"But of course, that has nothing whatsoever to do with whether or not it is OK for Obama to violate separation of powers by usurping Congress's authority".

I think, I or we should see your reaction when the administration before Obama did just that! I guess that was OK. Question and reminder, at that time did congress authorize the debt we currently face?

 

[WhoWee]

I think, I or we should see your reaction when the administration before Obama did just that! I guess that was OK. Question and reminder, at that time did congress authorize the debt we currently face?

Care to clarify a bit - regarding previous administration?

 

[Ivan Seeking]

As bad as I think it is for him to violate federal law regarding the regulation of nuclear power, I think it is much much worse to directly violate the Constitution itself. I can't think of a worse abuse of Presidential power than to usurp the legislative branch.

The legislative branch would be in violation of the Constitution if they allow us to default. So Obama might be both morally and legally obligated to act.

Yeah, I'm against that. You present it as if the two choices are to violate the constitution or allow the country to default. There's a third option, of course...

Default on our existing obligations to US citizens? Either way it will be seen as a default. There is no choice but to raise the debt ceiling and resolve this rationally.

 

[Hurkyl]

I agree with you and turbo that the debt ceiling game is silly, but again, both sides are playing. I'd even say the democrats started this round by passing a budget when the money didn't exist to fund it. All republicans are doing here is not passing a new law to bail the democrats out of their contradiction.

Is this what happened? At first this seems the obvious conclusion, but I can think of at least three other ways the situation could have come about:

• The new spending was legislated this term rather than last
• Traditional procedure is to raise the limit on a yearly basis, rather than to once immediately cover the long-term costs of a program
• Surprise expenditures

 

[Hurkyl]

The legislative branch would be in violation of the Constitution if they allow us to default. So Obama might be both morally and legally obligated to act.

How does that work? I confess to not knowing the Constitution inside and out, but I'm pretty sure there it does not contain the clause "The Executive branch shall assume the powers of the Legislative branch should Congress act in violation of this document".

And, of course, I'm only accepting your hypotheses (that defaulting would violate the Constitution, and that morality would compel Obama to act).

There is no choice but to raise the debt ceiling and resolve this rationally.

Assuming this is true for the sake of argument, there is still choice regarding what to do about the deficit.

 

[Newai]

Looks like Boehner is done with talks.

Boehner quits debt talks with Obama

WASHINGTON (Reuters) - House Speaker John Boehner blamed President Barack Obama for the collapse of debt ceiling talks, saying the White House sought to raise taxes and failed to "make the tough choices" on spending cuts.

http://news.yahoo.com/big-debt-deal-gains-traction-amid-chaotic-efforts-000029172.html

If Obama bypasses Congress, then at least we could get moving again.

 

[talk2glenn]

A curious question for those whose turture of the English language enables them to imagine presidential power under the 14th Amendment that simply do not exist.

Who was "violating the constitution" the two times previously that the United States Treasury defaulted on its outstanding and previously legal debt obligations?

The legislative branch would be in violation of the Constitution if they allow us to default. So Obama might be both morally and legally obligated to act.

I'm convinced your either deliberately pretending to be dense, or simply trolling for a reaction. There is no authority under the 14th amendment or anywhere else for the president to bypass Congress. No court in the history of that amendment has held that it prohibited from the Treasury from deciding what to pay and how, subject to the laws passed by Congress. The cloest parallel in American history was when we left the gold standard behind; effectively, the Treasury was authorized by Congress and instructed by Roosevelt to default on its gold contracts (don't believe that nonsense about "the United States has never faulted on its debts"; every elementary school child knows the history of the gold standard in this country). In four separate cases, the court found that Congressional power over debts and the money supply was plenary or absolute, each time asserting this authority under different avenues of argument (including the 14th amendment).

 

[WhoWee]

Looks like Boehner is done with talks.

http://news.yahoo.com/big-debt-deal-gains-traction-amid-chaotic-efforts-000029172.html

If Obama bypasses Congress, then at least we could get moving again.

Actually, Boehner said (something to the effect of) dealing with the White House is like working with a bowl of jello - great line! Actually, I think it's better if the House and Senate work something out on their own - then give it to the President to sign - he'll sign whatever they give him - IMO.

 

[russ_watters]

Recall that the Democrats passed no such budget at all in the last years of their control.

I'm not following - didn't a Democratic Congress pass a budget last year, which puts us over the debt limit next week? Didn't they do the same thing the year before?

 

[mheslep]

It appears the http://www.foxnews.com/politics/2011/07/22/boehner-ends-debt-limit-talks-with-white-house-turns-to-senate-leaders/", meaning that whatever else happens on August 2nd the US 2011 deficit spending will rapidly start falling.

 

[russ_watters]

I think, I or we should see your reaction when the administration before Obama did just that! I guess that was OK.

Huh? You're saying Bush usurped Congress's authority regarding the debt ceiling? Source please - I've never heard of that.

Question and reminder, at that time did congress authorize the debt we currently face?

At what time? The debt ceiling was last raised on Jan 28, 2010.

Acknowledging that the U.S. must continue to borrow to keep the government open, Senate Democrats on Thursday pushed through a $1.9 trillion increase in the nation’s debt limit.

The vote, along partisan lines, will boost the government’s total borrowing power to a staggering $14.3 trillion...

It’s the third time since Mr. Obama took office that Democrats have had to raise the debt, and Democrats sought such a large increase so they wouldn’t have to have another politically troublesome vote later this year, closer to congressional elections.

http://www.washingtontimes.com/news/2010/jan/29/senate-oks-new-debt-limit-raised-by-19-trillion/

 

[russ_watters]

The legislative branch would be in violation of the Constitution if they allow us to default. So Obama might be both morally and legally obligated to act.

Morally, perhaps, legally definitely not. This ain't rocket science, Ivan - I agree with the others that it seems like you're being purposefully dense here. People are not allowed to violate the law in order to stop someone else from violating the law (see: vigilantiism) . I'm sure you must know this. But hey, if you don't believe me, just ask Obama himself. He's acknowledged that he can't do this:

President Obama said today that Congress has to avoid a government default by raising the $14.3 trillion debt ceiling because his lawyers say he lacks the authority to do so on his own.

Responding to a questioner at the University of Maryland, Obama struck the "14th amendment theory" -- that the Constitution gives the president the authority to make sure the nation's debts are paid, including an increase in the debt ceiling.

"There's a provision in our Constitution that speaks to making sure that the United States meets its obligations, and there have been some suggestions that a president could use that language to basically ignore this debt ceiling rule, which is a statutory rule; it's not a constitutional rule," Obama said.

He said, "I have talked to my lawyers ... They're not persuaded that that is a winning argument."

http://content.usatoday.com/communi...1/07/obama-speaks-at-university-of-maryland/1

Default on our existing obligations to US citizens? Either way it will be seen as a default. There is no choice but to raise the debt ceiling and resolve this rationally.

No, Ivan, the third option is for Obama to make concessions to the Republicans that the Republicans find acceptable. You see this as the Republicans holding Obama (and the country) hostage by not agreeing to the Democrats' terms and raising the debt ceiling. But it can just as easily be viewed from exactly the opposite way: Obama and the Democrats are holding the Republicans and the US hostage.