Strengthening Constitutional Self-Government

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Presidency

The 14th Amendment Consequences

Right now several senators are on the floor calling on President Obama to unilaterally raise the debt ceiling through some twisted interpretation of the 14th Amendment, and earlier today Nancy Pelosi declared her support for this "option" as well. Senator Harkin went so far as to say that presidents can gain extra powers in emergencies, likening this debt debate to Abraham Lincoln's Emancipation Proclamation in the midst of the Civil War. President Clinton came out a few weeks ago in support of this option as well. However, President Obama himself has said that his lawyers tell him he does not have the constitutional authority to do something like this without congressional approval-- but he stopped short of saying that he would not do it. As we can see from his chameleon-like changes on the war powers of the executive, his views of the Constitution are not rooted in any coherent or steady interpretation-- it is truly a living document, transforming to fit whatever the White House wants it to.

The 14th Amendment was passed in the aftermath of the Civil War and has mostly been used in past public discussions for its citizenship standards, the equal protection clause, and the application of the Bill of Rights to the states. One section of the amendment states the "the validity of the public debt...shall not be questioned," and goes on to say that the United States was not going to count the debt incurred by the Confederacy as part of the legitimate public debt. From those few words, some Democrats in Congress have decided that it mandates the Federal Government to pay the interest on our debts on time and that the President therefor has the option to do whatever it takes to ensure that we meet our debt payments. There are two massive problems with this logic.

First, we have the money to pay the interest on our debts even if we hit the debt ceiling. We literally have enough cash on hand to pay what we are supposedly mandated to pay. Second, even if we did not have the cash on hand to pay our interest--which we do--those ten words do not grant the President the authority to exceed his authority and unilaterally raise the debt ceiling. The president cannot violate one part of his Constitutional duties to fulfill another.

If President Obama does follow the cries of his allies in Congress and decide to raise the debt ceiling himself, it may very well set off a cascade of political intrigues that will have tremendous consequences for the 2012 elections. If he does do it, Obama is seeming to hold the upper hand insofar as the public will be more concerned about economic issues rather than separations of powers. But that would be the only early advantage that Obama has, and the public response would depend significantly on what both parties do following such a move by the White House.

The Republicans could very well start impeachment proceedings against President Obama for grossly exceeding his constitutional authority. This would set up a flood of fighting in Washington, D.C. that would probably irk the public even more than the Clinton Impeachment proceedings did, which would be risky for Republicans depending on how the entire thing is seen-- however, if President Obama cannot offer strong arguments for exceeding his authority and depending how long it is dragged out, it could certainly weaken Obama's image and ability to campaign fully if he is being impeached. But, since Republicans and the anti-war Left in the House of Representatives barely lifted a finger outside of some rhetorical whining after President Obama launched his unfunded and unauthorized not-war in Libya, it has weakened the ground that Congress has to oppose Obama's expansion of his executive powers. Though, it might prove possible to try roll the Libyan war, still opposed by most Americans, into President Obama's invoking the 14th Amendment as a campaign to impeach him--multiple grievances and such--and pull in the Operation Fast and Furious gunrunning debacle in the background. 

Conviction would not make it through the Senate, but such a move could bring questions of the constitutional limitations of the Executive Branch back into the public discussion in the run-up to the 2012 elections, which would force progressives like Obama to publicly defend the lack of constitutionality to their positions and would also bring the subject up in a more clear way during the Republican nominee debates and next year's presidential debates. This would hinge on the ability of the Republicans in Congress to execute it well and try to avoid seeming like petulant politicians, so I would really not stake my hopes upon such a line-- but it is certainly a possibility.

The other massive consequence would be how Democrats respond to such a move by President Obama. The president would exceed his authority to increase the nation's debt, but the question of the nation's fiscal solvency would still be at the forefront and, unless the Democrats immediately act to make cuts, it would be politically devastating to the Democratic party in the upcoming elections. The public knows we need to make cuts. I suspect that the Democrats would in turn offer some gimmicks as they have been to make it seem like they are cutting back, at which point the onus would be on the Republicans to expose their false cuts. Again, this would be a more precarious position for President Obama as it just makes it so much easier for his rivals in 2012 to show that the Democratic Party is fiscally insane. "They raised our debt $2 trillion by themselves without any spending cuts! They are leaving our fiscal house in complete disarray!"

All in all, I do not think it is certain that President Obama will invoke this 14th amendment option, but with all the cries of support from his friends in Congress and his progressive penchant for claiming extraordinary powers in whatever he deems to be extraordinary situations, it may very well be likely. The consequences of such a move might make him appear to be the hero who saved us from collapse, but with the current mood of the country it may very well energize the Tea Party movement even more and push moderates towards the Republican candidates due to the ensuing fiscal issues. Presidential politics aside, it is no small fact that two-thirds of the Senate seats up for reelection are currently held by Democrats-- even if Obama manages to skim by on all this, such a mood could not only guarantee Republicans a majority, but a filibuster-proof supermajority to boot.
Categories > Presidency

Discussions - 3 Comments

Illegally raising the debt limit would be a true Rubicon moment in no uncertain terms.

Please President Obama use the 14th amendment to raise the debt celing. It will be a joy to watch your impeachment proceedings and I will win a bet I have with a friend that you will not make a full four year term.

Hillsdale Prez Larry Arnn made the telling point that Obama described the 14th A solution as "not a winning argument"--a revealing choice of words from the former professor of constitutional law. Not that it wasn't an absurdity but that it could not win. A Chicago school of a different sort.

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