President Barack Obama rejected calls for him to invoke the Constitution’s 14th Amendment to skirt Congressional approval for issuing new debt, as both political scholars and legal experts said such a crisis-aversion plan would be risky and potentially illegal.
“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,” Obama said in a news conference with reporters yesterday. “It’d be tied up in litigation for a long time. That’s going to make people nervous.”
“There are no magic bullets here,” he said.
The president’s comments further dim the prospect that he could use what amounts to an 11th-hour emergency exit if the White House and Congress are unable to reach a deal to raise the debt ceiling by Oct. 17. His stance places the onus on Congress to strike a deal ending the week-old government shutdown and raising the debt limit, or else risk triggering a U.S. default and global financial crisis.
The rationale for such presidential authority has been pushed by some constitutional scholars who argue that a default on the country’s debt violates the Constitution’s 14th Amendment, which states that the “validity of the public debt of the United States” authorized by law “shall not be questioned.”
A refusal by Congress to approve a new debt limit would be unconstitutional, thereby giving the president no choice other than to act on his own to ensure the country’s bills are paid, Sean Wilentz, a professor of history at Princeton University, wrote in a New York Times (NYT:US) op-ed published yesterday.
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Wilentz and others have argued that the president can invoke emergency powers to protect the country -- a move that could be necessary in the face of destruction set off by any U.S. default.
“The burden in this crisis rests entirely with the congressional Republicans, who have precipitated it,” Wilentz said in an e-mailed statement. “If they were to violate the Constitution, it would be their fault, not the president’s. The president needs to make that argument as well.”
The Obama administration has consistently shot down any suggestion that the president would invoke untested powers under the 14th Amendment to bypass the need for Congressional approval, saying that only the Congress has the legal authority to approve more borrowing.
“They seem to have thought that through,” John Podesta, who was White House chief of staff during the Clinton administration and an informal adviser to Obama, said in an interview. “Whether it’s coming from the Justice Department or the White House counsel or a combination of all of the above, they seem to think the 14th amendment doesn’t work for them.”
Carter Phillips, a constitutional lawyer who has argued 76 cases before the U.S. Supreme Court, said previous administrations haven’t read the Constitution to grant such power to the president. The president would have, at the very least, a controversy if he raised the debt ceiling on his own without Congressional authority, he said.
“The framers would be horrified to think that the president could borrow in defiance of an explicit limit imposed by Congress,” said Phillips, a Sidley Austin LLP partner in Washington.
Jack Balkin, a Yale law professor who writes the blog Balkinization, said Obama has a constitutional duty under the 14th Amendment not to place the validity of U.S. debt into question. Such a duty would be breached, Balkin said, if the president sold bonds without congressional authority.
“Issuing unauthorized debt might do precisely this, because bondholders might treat the new debt as invalid or of questionable validity,” Balkin said in an e-mail. “In that case, the exercise of emergency powers would be self-defeating and unjustified.”
Obama would probably face impeachment charges, Balkin said. Government bond sales would also likely be challenged in court by allies of the Republicans who could buy the new bonds to give them standing to file a lawsuit, he said.
“If Obama is impeached, then the issue will shift from the constitutionality of what the House has done to the legality of what Obama has done,” Balkin said. “He will lose the higher ground in the debate, and the country’s focus will be taken over by an impeachment trial for months, as the economy spirals ever downward.”
Eric Posner, a law professor at the University of Chicago, said the argument that Obama could use emergency powers if a default triggers a national economic crisis is a political question, and not a legal one.
“If there were actually a crisis, if markets collapsed and there was an extensive crisis, and Congress didn’t do anything, the president could certainly claim the power to do what’s necessary to address the crisis,” Posner said in an interview.
The question, he said, is whether the public would accept such an exercise of power. “It would be very risky,” Posner said.
Among lawyers studying the president’s options is a third view, which argues that without a deal, Obama will be left to choose among multiple unconstitutional options -- unilaterally raising taxes, unilaterally cutting spending or ignoring the debt ceiling with the issue of new bonds.
Neil Buchanan, a law professor at George Washington University, and Michael Dorf of Cornell University, call this scenario a “trilemma” and advise that the president take the “least unconstitutional” course -- that of issuing bonds.
“He’s going to be stuck making a choice choosing among three bad options due to Republican intransigence,” Buchanan said in an interview. “The Obama people are committed to not blinking. If Republicans don’t blink either, then the last mover in this drama is the president. He can float some bonds or default on the obligations, but he’s the one who has to make that tragic choice.”
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