Second, Err, Fourteenth Amendment Solutions?

President Obama may have the authority, or even the obligation, to pay America’s sovereign debts without any action by Congress at all. Some of us who actually spend time surfing for recent Constitution-related legal results have known about this for a week at least, but now it’s beginning to go viral. The assertion that Obama can “fix” the problem unilaterally hinges on the following clause from the Fourteenth Amendment to the Constitution… yes, the same amendment that resolved citizenship issues for former slaves after the Civil War:

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. …

This section (see here for text of entire amendment) concludes by effectively disavowing debts incurred by the Confederacy, but for our purposes the crucial clause is the one shown above: any debts authorized by Congress (“authorized by law”) are to be honored (“shall not be questioned”). As I understand it, the Executive branch has not only a right but an actual duty to honor those debts, and no mere legislation (read: debt ceiling) can absolve them of that duty.

Here is Keith Olbermann’s interview with Ryan Grim on the subject. I’d insert it inline if I could find a way.

YMMV. I’m sure Republicans aren’t happy with that interpretation, and I’m sure Mr. Obama is unhappy with not being able to be the slice of friendly bipartisan cake he thinks he is. But if push comes to shove, it certainly seems to me he has the authority to end all the hand-wringing with a stroke of his pen. The challenge may be getting Obama to pick up his pen.

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  • Bryan  On Wednesday June 29, 2011 at 4:23 pm

    The only Constitutional way of limiting the deficit is to not spend the money. That is called – the Budget. Once Congress has authorized the expenditures, they must be paid. The US cannot, Constitutionally, default on its debts.

    Congress approved the budgets that generated the debts, so they can’t refuse to pay them. The ‘debt limit’ was a law that was supposed to remind Congress to watch its ‘bank balance’. If Congress ignores the limit and runs up the bills, Congress still has to pay them.

    In short, the same Congress that is claiming the right to default, also passed a budget that exceeded the limit. If they didn’t want to exceed the limit, they shouldn’t have spent the money.

    • Steve  On Wednesday June 29, 2011 at 8:28 pm

      Bryan, I concur completely. However, I made the mistake of watching a news program in which they pitted Sen. Menendez (D-NJ) against Sen. Barrasso (R-WY). Usually I avoid such he-said-he-said shows as being the weakest possible style of news “reporting,” but I decided to allow some latitude since the conflict is 99 percent partisan politics anyway.

      From that confrontation, I concluded that the R’s have won completely… not on what the decision should be, but on what, exactly, is to be decided. I fear the chances are about zero that Zero would actually perform his constitutional obligation, given that if he doesn’t, he has yet another chance to cave to the GOP on something important. That man has a bright future in whatever the GOP pays him to do after his one term in office.

  • MandT  On Wednesday June 29, 2011 at 8:44 pm

    If only we could zero to an ostrich. A more apt description would be Lord of the Nematodes. .

  • John Nail  On Saturday July 2, 2011 at 4:35 pm

    If I understand this the Constitution trumps any other law like the debt ceiling.

    The debt ceiling raise is needed not for new spending but that that has been already authorized by Congress, ie by law and thus the President has 2 duties:
    1) Uphold all laws that have been passed
    2) The debt has already been committed to over many years so it is valid and “shall not be questioned.

    That makes using the 14th a no brainer.

    The Presidential oath also requires the President to protect and defend the Constitution. If he does not follow it as laid out above one could argue you could impeach him as well.

    In fact all members of Congress took a similar oath so their inaction to provide the debt ceiling action needed to fund the laws passed by them could be deemed a violation of their oath of office subjecting Boehner in particular to impeachment. Right?

    The other issue here is that failure to protect the nation’s financial system from a meltdown is akin to “war” and the President again is bound to protect the nation as well. Keeping the nation from falling into a deeper recession, higher borrowing costs, higher deficits due to a double dip and the world losing faith in the US as a reserve currency makes his inaction on the 14th impeachable to me.

    Failure to act has been estimated to cost the US $50B minimum directly for even a few day default due to increased debt rollover costs and as much as a trillion over a decade not to mention higher borrowing costs for consumers and business as well.

    The President has put forth $2T in cuts and asked for $400B in tax loopholes being closed. Every deficit reduction plan that Reagan, Bush I and Clinton did required a combination. Why can’t the Repubs simply negotiate in good faith and get this done?

    If they do not they will get hung out to dry by the President being forced to act under his Constitutional duty. That surely isn’t going to help them defeat Obama. It might just sew up his re-election before they even have a primary.

    If they think he isn’t tough enough to do this. Just remember the Sunday nite we found about Osama or the Somali pirates that were taken out right after he took office.

    If he needs to he will act and get the job done as he should, no doubt about it.

    Here is the case law to support it:

    PERRY V. UNITED STATES, 294 U. S. 330 (1935)

    The government’s contention thus raises a question of far greater importance than the particular claim of the plaintiff. On that reasoning, if the terms of the government’s bond as to the standard of payment can be repudiated, it inevitably follows that the obligation as to the amount to be paid may also be repudiated. The contention necessarily imports that the Congress can disregard the obligations of the government at its discretion, and that, when the government borrows money, the credit of the United States is an illusory pledge…

    The Constitution gives to the Congress the power to borrow money on the credit of the United States, an unqualified power, a power vital to the government, upon which in an extremity its very life may depend. The binding quality of the promise of the United States is of the essence of the credit which is so pledged. 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.

    • Steve  On Saturday July 2, 2011 at 5:58 pm

      Welcome, John. My understanding of Section 4 of the Fourteenth Amendment is essentially the same as yours: it is a duty, not merely a right, of the president to properly execute the nation’s indebtedness by paying the debt, and I take the phrase “shall not be questioned” to mean that no mere statute can invalidate the debt to which Congress has already committed. I.e., the whole “debt ceiling” matter is bogus: once Congress has legitimately committed the nation to a debt, Congress has no power to “question” (i.e., renege on) that debt, and the president has a constitutional obligation to pay that debt.

      I also agree with you that Republicans are taking a real chance by betting that voters will perceive Obama as being at fault for any possible default. In the mid Nineties, Newt Gingrich made a similar assumption, and we all know what happened to him, and to the president he targeted.

      My only concern is that Obama, of whom I am not an unqualified fan (as you may have gathered if you’ve read a few of my posts), will give the Republicans more of what they demand, not because he is not tough, but because those are things that he, Obama, also wants. Is Obama a closet Republican? The closet door is opening very soon now, and we’ll find out.

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