Friday, July 29, 2011

Pres. Obama must now use 14th Amendment

You read that correctly. Even though roughly three days remain before a first ever U.S. default, President Obama must now unilaterally invoke the 14th Amendment to raise the debt ceiling on his own--and without Congressional approval. The idea of using the 14th Amendment is not new. Others, including former President Bill Clinton, have advocated this approach. The argument is two-fold. Textually, the Clause 4 of the 14th Amendment says that "the validity of the public debt … shall not be questioned." Practically, as law Profs. Posner and Vermeule point out, "[t]he president has the power during crises to take actions that are necessary to protect the country."

Under either argument, one central truth remains: the current self-inflicted crisis will be averted. However, we are now only days away from a catastrophe that has significantly decreased the confidence of global investors in our economy and governing ability. For that reason, President Obama has the obligation to act alone. If President Obama bypasses Congress on this issue, he will provide a signal to investors and other nations that, regardless of future spending fights, the United States has a fail-safe mechanism to ensure that it meets its bills on time: the Constitution.

There will, of course, be external risks associated with this approach--i.e., the courts could get involved, and reject the administration's arguments. However, as many legal commentators opine, the judiciary is unlikely to inject itself into this hyper-political battle. I find it hard to believe that a judge would want the threat of a national default hanging on his or her personal interpretation of the Constitution. Restoring confidence is absolutely imperative in light of the way this crisis has played out. The only way to do that now is to provide the world with an indication that the United States will never default on its obligations.


  1. But you forget Section 5 of the 14th Amendment: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

  2. @ 10:12, the point is that courts won't get involved regardless. This argument makes a lot of sense, and i think he should do it.

  3. And I think he should be impeached if he does.

  4. The best way to ensure that the United States will never default on its obligations is to make sure those obligations are modest, on-the-books, and in line with expected revenue.

    The failure of the political class to take even small steps towards this goal is the cause of the uncertainty in markets and the real risk of a downgrade from AAA.

    Unilateral action by the president to issue even more debt will further unsettle the markets, not reassure them, and will make a downgrade a certainty.

    Still want him to do it?

  5. You telling me in the whole USofA not one single judge wouldbe willing to rule on this...Hah...The Florida recount while the country in in default....Kim Jung Il culd not have come up with a better plan for Team America-2.

  6. First of all, the US HAS defaulted a couple of times in its history - but 2nd, a failure to raise the debt ceiling does NOT equal default. Instead, it would mean the shutting down of some government services.

  7. If it involved any increase in taxes, and it would, it would be taxation without representation. If the president raises taxes by fiat, he'd better be prepared for the consequences.

  8. The US takes in enough $$ to pay the bond holders, SS, Medicare and the Military - "the term "default" is being tossed around as fact and it is a lie

  9. -- 10:16,

    Absolutely. The fact of the matter is that the President has the authority to protect the nation in the event of a crisis. The 14th provides a textual outlet for him to do it, and I absolutely believe that, in light of the fact that the extreme right wing caucus has refused to budge, he should take any action appropriate to save this nation from economic catastrophe. That would not unsettle the markets; it would provide a long-term measure of confidence.

    Your point about spending is well-taken, but the problem with the right's approach to this is that they've gone about it in the wrong way. Not raising the debt ceiling will harm everyone in a far more immediate fashion.

  10. A) how many lenders do you think will loan the US money when the debt might be repudiated as illegally obtained at any time after it was incurred? And under those terms, we would be lucky to get a Greek-level interest rate.
    B) Obama would definitely be impeached by the House;
    C) there would be a non-trivial chance he would be assassinated for such an act.
    D) how many Americans do you think would immediately use this as a reason to evade taxes?

    It's been 150 years since the last civil war: this would be a great way to provoke another one.

  11. -- 10:21,

    Simply incorrect. Even if we pay the bondholders, etc., the ratings agencies (and global investors for that matter) must look at the whole. A nation that can't meet ALL of its obligations (interest on bonds, and otherwise) creates a risky investment.

    The government's borrowing rate in the rate companies and banks use to value assets over the long-run. If this is no longer a "safe" investment, companies won't invest, and banks will not loan as they used to. It's irresponsible to think otherwise, and to do as the GOP has done over the last few weeks.

  12. So what is the purpose of the debt ceiling? Are there any cases where we will do something other than raise it when our debt levels bump into it?

  13. stupid to say that Obama would be impeached over this. Even if he gets impeached, he won't be removed by the Senate. What about when bush ignored congress and started two stupid wars, and tortured prisoners?

  14. I agree with Anonymous (heh). Unilateral action by the President to borrow money not authorized by Congress would be an unconstitutional act, grounds for impeachment, and would do nothing to avoid a downgrade of our credit rating. Our credit rating is not going south because the markets fear an imminent default (there won't be one, unless Obama deliberately refuses to pay), but because the markets know there will be a default in the next 10 years unless we get spending under control. Under Obama's proposed budgets, in 10 years our deficits will require 18 percent of the world's GDP to finance. Do you really think the world is going to agree to lend us money for this spending spree? Our debt ceiling is the least of our problems.

  15. There shouldn't be a debt ceiling to be fair. The only other country with one is Denmark, and even they're not dumb enough to risk defaulting by not raising it.

  16. I guess President Egojunkie McTeleprompter getting his way takes precedence over following the Constitution and the processes of democratic government.

  17. Quit fear-mongering. The failure to not pass a debt ceiling increase will NOT lead to "default". It is amazing the propaganda from the left on this (even the right is starting with it). If you do real credit analysis, then you will know that the US has the ability to cover their debt obligations by a factor of roughly 5.5x. If that was a publicly traded company they would be considered to have a rock solid coverage rating.

    There will still need to be cuts and that will come from government payroll and discretionary spending. If the there is default on the debt it is solely because the President/Treasury forced it upon us.

    What does a downgrade matter anyway? Borrowing costs will go up but on a quality basis the US will still be the strongest credit out there. Besides, no investor in their right mind thinks the US is still a AAA credit.

  18. In 2006, Obama opposed raising the debt limit, saying that it would be a "sign of leadership failure". Raising it now, absent the approval of congress, sure would be irony. But I suppose at least he would finally recognize himself for the failure that he is.

  19. Your ellipsis is conveniently placed right before the most pertinent part of Section 4. Here is the full sentence:

    "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."

    That "authorized by law" segment shoots your entire argument in the foot. The President of the United States cannot authorize debt, only issue debt authorized by Congress.

  20. "the point is that courts won't get involved regardless. This argument makes a lot of sense, and i think he should do it."

    That is tantamount to saying it's OK for Obama to do it, because he can get away with it. As far as I can see, he would get away with it in the short term, but in the long term, American constitutional governance would be gone. We would be left with a Chavista dictator.

    Why doesn't Obama just arrest Congress if they don't pass legislation he believes to be constitutionally mandated? Why doesn't Congress order him arrested if they believe his actions are unconstitutional. What if Congress called on the military to step in? With Democrats in control of the Senate, that won't happen now. But that the votes may not presently be available is not a principled reason why the activity would be wrong. As George Will said, truly Obama is nothing but Huey Long with a better tailor.

  21. The legal justification for this is highly questionable and the SCOTUS would have to get involved. That is their job and they don't really have the luxury to decline to make a ruling. The outcome would be highly partisan and involve more acrimony than we saw in Bush v Gore.
    Additionally, such an action by POTUS would incite far more uncertainty and repercussions than a failure to raise the debt ceiling would. Its the epitome of presidential irresponsibility and the outcome would change this country forever. Lives would be lost because of it and there is no telling how it would spiral down.
    God help us all.

  22. Bobby, you're wrong. Even with a 14 tril deficit, the U.S. borrows capital at the cheapest rate of any country. A default will destroy that.

  23. The real failure to govern comes from an executive branch that, in a crisis like this, where we don't have the money to pay our bills, when asked to identify some expenditures it would agree to cut, came up with two billion dollars. That is less than .0002 percent of the budget. Everything else is essential. That, friends, is lunacy.

  24. This is how all dictatorships start. Just because the government cannot issue new debt does not mean it cannot pay its old debt so using that as an argument would just be a transparent ruse for the executive to grab more power. Obama can prioritize what is paid and there is more than enough coming in to pay the interest on the debt. If he chooses to spend elsewhere or if he tries to issue new debt then that is when there would be a Constitutional violation. Not to mention that the new debt would be entirely illegal and you would have trouble finding people foolish enough to buy it. "Here guys, buy these bonds that are illegal and worthless!"

    But to the left the Constitution is a completely foreign document so you can be certain any time they claim to be acting on its behalf they are doing exactly the opposite as is clearly the case here. Even Obama knows that floating this idea is just a cynical ploy being used as a threat for political purposes. He also knows that most on his side are so ignorant of the Constitution that they will fall for it.

    The courts would not think twice about knocking Obama down over this and he would face an impeachment challenge that would only be stopped by a partisan Senate. And frankly, the Democrats might not be totally against ridding themselves of our failed president at this juncture. It would be the smartest move they could make.

    Despite what many would like we do not have an imperial presidency and he cannot issue new debt just on his own say so.

  25. Please note that the 14th amendment avoids default, but will not keep the government open. It arguably permits borrowing to service the debt. It does not permit borrowing for other purposes.

    Assuming the government spends all the money coming in then borrows under the 14th amendment to service the debt, that still leaves them in the neighborhood of $100 billion per month short of what they're spending now. Huge portions of the government will close.

  26. The President does not have the authority to spend money that power is solely the province of congress. Raising the debt limit implicitly spends money (interest on the national debt).

    Furthermore, we are not out of cash. Our monthly cash flow is adequate to meet many short term obligations so not be a liquidity crisis he would be raising the limitly because he WANTS to not because he HAS to to meet obligations. I believe that a unilateral act on his part would result in an almost instantaneous downgrade by bond holders insisting on higher yields if not in fact by an actual downgrade by the ratings agencies. It would also provoke a constitutional crisis because his usurpation of the powers of Congress would have to be answered with impeachment. Even if they couldn't obtain a conviction (not likely given the Senate is controlled by the Dems) it would be a telling response. And a possible civil war (God help us all in that case) is a small but but still possible outcome. Rest assured there are a lot of angry folks out there and if the political process goes south and they feel their backs against the wall they will act and act forcefully.

  27. "unilaterally invoke the 14th Amendment to raise the debt ceiling on his own--and without Congressional approval?"

    This is a contradiction of the 14th amendment. Invoking it would mean NOT "unilaterally" raising the debt ceiling.

    Is it absolutely impossible for the Left to see more than 10 minutes into the future? According to every poll out there, 2012 will bring in a Republican president and congress. How will the Left feel about unilaterally tearing up the Constitution then?

  28. Why is it that so many who accused Bush of acting imperiously, and of shredding the Constitution, now seem positively giddy at encouraging Obama to do so much worse?

  29. The USA will not default on August 2 if no bill is passed, as we have plenty of income to pay interest on the debt. The horrific possibility of a downgrade is caused by the lack of any serious action on reducing spending, which if done would signal the market that the USA is serious about long-term solvency. Increasing the debt ceiling is an artificial device that placates Washington pundits but does nothing to alter the structural insolvency of over $14T in debt and a government that has operated WITHOUT a working budget, contrary to the Budget Act of 1974, for over two years. The debt and feckless posturing is what has caused this crisis. If Obama takes unilateral action it will only make the crisis worse. It won't solve anything. And the chaos he causes will be hard to slag off on Republicans who, despite their own bad spending habits, have at least offered some real (and tiny) cuts that would signal a desire to address the debt crisis.

  30. Emphatically, this is a self-created crisis. GOP keeps saying that the real cause of a default will be debt, but no one was talking about this 3 months ago. Default is now an actual, and likely, possibility. Debt has nothing to do with it except the fact that it's a tool the republicans are using to shake this country to its knees.

  31. hey anon - apparently you didn't see the "borrowing costs will go up" in my text. reading comprehension much?

  32. @anon at 1047,

    I call BS sir. The Feds now owe 150% of annual GDP not to mention state and Fed liabilities that are off books to the tune of countless trillions that have yet to even be discussed.

    We are borrowing 40 cents of every dollar spent how can that go on?

  33. the real cause of default at some point in time WILL be the debt. it just won't be in the coming weeks.

    "debt has nothing to do with default" - wow. just wow. the left continue to amaze in their inability to understand any type of cash flow statement/market.

  34. So why not unilaterally invoke the 14th amendment to raise tax rates instead of issuing debt?

  35. Heh, nice ellipsis there. The 14th amendment says, "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."

    Leaving out AUTHORIZED BY LAW sorta changes the meaning there, doesn't it? The only thing backing bonds issued above the debt ceiling is Obama's word. Would you give that an AAA rating?

  36. "authorized by law" does not change anything. Executive orders are technically "authorized by law." Additionally, raising the debt ceiling would only cover expenses that are already authorized by law. that argument is therefore disingenuous.

    The AAA rating wouldn't be based on Obama's word; it'd be based on the fact that official executive policy of the treasury department is that it can raise the debt ceiling under the 14th amendment.

  37. oh please please let me invest based solely on Obama's word!!!

    man, can you even imagine the yield that would have to be offered to off-set that risk?

  38. This is all gibberish. The power to issue debt lies solely with Congress. Nothing in the 14th Amendment even mentions the executive branch, never mind actually giving it new powers. The debt limit is a statutory law and laws passed by Congress are not overridden by Executive Orders.

    Now, can the president try this and tell the treasury to pass the debt limit? Sure, but in doing so he will be issuing legally invalid debt and would violate the 14th amendment in the process.

  39. Aviator, why are you trying to get Obama impeached?

  40. Why would we impeach Obama over doing something that is arguably constitutional? Bush (unquestionably) did things that are unconstitutional, and there was no impeachment. Why are you tea baggers so damn dumb.

  41. There's been several commenters who are trying to justify Obama violating the Constitution by stating Bush did it with his "illegal wars". This is non-sense. Bush got Congressional approval for both Afghanistan and Iraq, something Obama has failed to do with his illegal war in Lybia. So the question isn't why are so many tea partiers dumb, the question is why are so many liberals too dumb to understand Congressional approval means the wars aren't "illegal".

  42. The entire concept of a default occurring on a date certain is sheer stupidity. We only default if we fail to pay the interest. Which is $18B. Anticipated receivables is $170B and an estimated $240B is needed to pay all budget line items.

    Not paying the interest payments, actually defaulting, is like saying you're going to eat T-bones and let the electricity be turned off. Only a moron or a man committed to destroying our economic system would do that.

  43. "Why would we impeach Obama over doing something that is arguably constitutional? Bush (unquestionably) did things that are unconstitutional, and there was no impeachment. Why are you tea baggers so damn dumb. "

    1. because it isnt arguably constitutional.
    2. unquestionably? I do not think that word means what you think it does.
    3. tea baggers seem to think that spending more money than is taken in is not sustainable. You think it is. History will judge who is so damn dumb.

  44. 12:53-> I think spending more money than you take it is dumb. So why not take in more money? In addition, the option IS arguably constitutional; reputable law professors and legal commentators have suggested as much.

    12:11 -> Bush did get approval for the wars, but he did not get approval to torture prisoners in violation of the Geneva Convention.

  45. "12:11 -> Bush did get approval for the wars, but he did not get approval to torture prisoners in violation of the Geneva Convention."

    We never signed the Geneva Convention. Water boarding as torture is a debatable point. But that's moving the goal posts.

    Invoking the 14th Amendment? Good Lord! From a theatrics perspective it would make the Obama "it couldn't possibly get anymore surreal" perspective more surreal, and if it were anyone else I'd say he wouldn't dare go that far, but this is Obama we're talking about.

    The People have been fairly patient waiting for 2012, but if Obama did this? It's hard to predict if some of the extremists would be able to hold it together.

    Impeachment? Definitely. Doesn't matter if he isn't removed from office by the Senate. It would guarantee him losing in 2012.

  46. Dumbass Anonmous 12:11: I see you already had to change your argument once because you got caught in a barefaced lie. Well, I caught you in another one. The Geneva Convention specifically excludes illegal combatants, which most of the Taliban and al-Q fighters are. Like pirates,they have no rights whatsoever under any international law. We are completely within our rights to just send someone down to Gitmo to shoot them all now. And I see that you conveniently ignored the fact that Obama is running an unauthorized war in Libya.

    Everyone who thinks the 14th Amendment authorizes the President to unilaterally raise the debt ceiling is ignorant at best. Article I very specifically reserves that power to Congress: Article I, section 8, where it enumerates the powers of Congress, includes "To borrow money on the credit of the United States". No respectable legal scholar would ever argue that the 14th Amendment supersedes this part of Article I. The purpose of that clause in the 14th Amendment that everybody is quoting was to prevent the former Confederate states from refusing to pay taxes to pay off the Union's debts incurred during the war; the other part of the clause that no one ever quotes specifically repudiates the Confederacy's debts. That's all it is intended to do. It in no way grants the President the power reserved to Congress in Article I to borrow money.

    As for executive orders: No, they are not laws. They have nothing to do with laws, and in fact, they must comply with existing law. By definition, only Congress can make law. The executive branch can regulate, as authorized by Congress, but only Congress can make law.

  47. At least Caesar used his own money (ill-gotten, but his, nonetheless) to bribe the proletariat. Obama has just made the proletariat larger than any previous sitting president, and he needs the money of the working class to bribe them. Maybe Caesar needs to be treated like Caesar.

  48. This comment has been removed by the author.

  49. Why is there a debt ceiling? Every previous Republican President and Congress has approved every raise in debt ceiling. Bush's Secy Mitch Daniels said it was just a "maintenance issue," not up for debate. Reagan said it was madness to not raise it (he should know, as he tripled the national debt). The debt ceiling provides for paying debts already incurred, not future debts.
    The 14th Amendment makes questioning the validity of this debt prohibited.

    The debt ceiling exists only as a political football, as theater. But it is a very dangerous drama.

    All politicians have a primary vow to protect the constitution, including the prohibition against "questioning the public debt." Those who do are betraying the Constitution, and should be tried for treason. If necessary to enforce the 14th Amendment, the President is obligated to do whatever is necessary to ensure that the public debt is not questioned (this is not just interest on the debt but ALL debt). If raising the debt ceiling, or just abolishing it (most countries do not have a debt ceiling; if you approve spending, beyond revenues (whether tax cuts to those not needing them or unncessary wars) are raising the debt ceiling. To argue then that it should not be raised is to argue that the public debt can be questioned (and not paid in full). This verges on treason: to violate the Constitution and threaten to destroy the economy for electoral reasons.

    Obama got bin Laden; now it is time to go after the economic terrorists who would do far more harm. Raise the damned debt ceiling: the President has no choice; he is obligated to protect the 14th Amendment prohibition against questioning the public debt.

  50. If the debt ceiling is not passed (for funds approved by Congress in the past), then probably interest only will be paid out of revenues.

    This will raise the national debt. And who will deliver the mail, process SS and military checks?
    Who will protect our homeland?

    The fight against the debt ceiling violates the 14th amendment prohibition prohibition against "questioning the national debt" (NOT just the interest payments but ALL public debt) and
    inevitibly (as when you pay only % on your credit card) INCREASES the national debt.

    This is, literally, madness (or, for the puppet-masters, extreme cynicism).

  51. "The validity of the public debt of the United States, ..., shall not be questioned."

    The inability to pay debt service does not equate to declaring the debt null and void. Debtors default all the time and still acknowledge the validity of their debt. If the debt service cannot be paid, so be it.

    I never thought that in the United States that I would see such a plea for tyranny. We have a system of checks and balances with primary power residing with Congress. Why do you want to upset that? Sulla and Hitler both came to power by setting aside the supreme laws of their countries under the guise of a crisis. In both cases, the people welcomed the dictators and then the people suffered from vesting such great authority in a single man.

    Our system of government is working exactly as it should and better than it has in a very long time. The majority of the power should reside with the states, and the states, through their duly elected representatives, are stating that they have had enough.

    You want compromise? We are about to see what compromise truly means.

  52. This is really pathetic. How many right-wing crazies read this blog? Assassinate Obama? Impeach him? This just goes to show who this crisis belongs to.

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