Wednesday, July 27, 2011

Should Obama Invoke 14th Amendment? Yes.

With Republicans continuing to hold the debt ceiling hostage by refusing to compromise with the majority party, Democrats are increasingly looking towards the 14th Amendment to circumvent GOP obstruction.

Section 4 of the 14th Amendment states: “The validity of the public debt of the United States, authorized by law, including debts incurred for payments of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned." Since the "public debt" cannot be questioned, Democrats argue that the debt ceiling is unconstitutional.

In my opinion, President Obama should invoke the 14th Amendment for two reasons. One reason is because Republicans claim a monopoly on constitutional interpretation (mainly to advance their agenda at any cost), and the second reason is because according to the amendment, the debt ceiling is unconstitutional.

Why is the debt ceiling unconstitutional?

Conservatives argue that the amendment only applies to Congress and that it would be an overreach of power for the president to ignore the debt ceiling, and they base this off of Section 5 which states "Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

The problem is that Republicans refusing to permit an extension of the debt ceiling is a failure to enforce the amendment.  They are questioning "public debt," which the amendment states shall not be questioned.  Essentially, Congress is in violation of the Constitution and the president, by invoking the 14th Amendment, would be forcing Congress to adhere to the entire amendment.

Also, the public debt that would be in question was debt that the government had accrued due to past actions of Congress.  To allow the government to accumulate debt but limit the ability to pay such debt would be a ridiculous notion, which is why "public debt" cannot be questioned.

I don't understand why Republicans are upset about this anyway - they may potentially avoid further negative press because of their unwillingness to compromise and the Supreme Court, which will most likely hear this case if there were to be any case at all.  It is questionable as to whether Congress, or anyone at that, would have standing to challenge such a maneuver.

Carlyn Kolker wrote the following for Reuters:
Regardless of how controversial a 14th Amendment maneuver might be, a legal challenge would be very hard to mount and so far, no one has stepped forward to say they would challenge him in court.

Nor has anyone said they would sue him if he took the alternative, equally controversial, step of using his broad authorities as guardian of the constitutional order to unilaterally raise the borrowing threshold.

Theoretically, there are aggrieved parties who might consider legal action, including Congress, individual citizens or interest groups, and investors such as foreign governments...

It wouldn't be enough for a plaintiff to claim that Obama is overstepping his authority or acting illegally. "In order to sue, you have to have injury in fact. The touchstone issue is, can someone get to court?" said Jonathan Zasloff, a law professor at the University of California, Los Angeles.

That same standard would apply if a party pre-emptively filed a lawsuit to stop Obama invoking the 14th Amendment.

Challengers might argue that relying on the 14th Amendment to raise the debt ceiling qualified as an abuse of executive power. But it would be extremely difficult for them to show that they would suffer specific harm such as lost money, property or rights, legal experts said.

The anti-tax group Club for Growth, which opposes increased federal borrowing, does not consider a legal challenge over the 14th Amendment likely, said executive director David Keating. "It's difficult to get standing," Keating said.

Individual members of Congress, congressional leaders, or Congress itself might have better luck suing, by claiming their constitutional authority to handle appropriations was violated by the President's move.
Seeing that if Obama were to prevent default by raising the debt ceiling, he would essentially be paying bondholders back, and I doubt any of those individuals would be claiming specific harm.  That would probably not stop conservative lawmakers who have claimed such a move would be an impeachable offense, but coming up to an election year, would Republicans seriously toy with the idea of impeaching the president over an issue where the public overwhelmingly side with the Democrats?  The backlash for Republicans would be horrific. After all, didn't many of them get elected on the promise of focusing on jobs - not political witch hunts?

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