The 14th Amendment Option

Since last writing about the constitutional option, Steny Hoyer, Senators Harkin and Conrad have supported it openly and apparently Nancy Pelosi, according to people close to her, also supports President Obama invoking the 14th Amendment.

There are various arguments that it has become relevant. This is the first time the debt ceiling has ever been politically contested since 1917. In the 89 times since the late 1930s, this was just congressional housekeeping. This also the first time any Senator or group of Senators have actually vowed to filibuster a debt ceiling. It is also the first time it has been held hostage to a militant group of ideologues. The present circumstance will be repeated for the foreseeable future, making Washington ungovernable.

One can argue that this is a unique historical circumstance and that this is not a crisis that was created by unseen circumstances. This was solely generated by the Republicans. One can speculate all you want about whether it is meant to cripple President Obama or is the result of guilt over having been the party that generated the largest deficits in American history. Whatever the motivation the position of the United States as a leader in the world's economy is jeopardized. The consequences of a default would make the United States subject to pressures from foreign powers and create a perception of weakeness in a way a terrorist attack could not. A default would instantly create hardship for the 70 million Americans dependent on government checks for their Social Security, pensions, veterans benefits and other government programs. It would also immediately affect the pay of American men and women currently fighting two wars overseas. It would also trigger a rise in interest rates which would only increase America's debt unnecessarily.

For this reason, President Obama should invoke the 14th Amendment and unilaterally raise the debt limit so that it extends past the end of his first term. While the President might risk the House bringing charges of impeachment against him. It is clear that they would fail. In fact, it is dubious who if anyone could bring the Administration to the Supreme Court. Who could claim damage? Who would have standing to bring suit? And given the current Supreme Court's philosophy,it's unlikely they would even hear the case.

Jack Balkin of Yale Law School says that if Congress fails to act, President Obama would be faced with having to act on several competing laws and would have to treat one of them as unconstitutional. That means the debt ceiling would have to go.

As an example of the conflicts Balkin was talking about, the United States has contracts with thousands of companies. Are they not to be honored? The Supreme Court has already ruled that the President can not prioritize which debts get paid off. So the GOP urging that bond bearers, social security and the military be paid when the US goes into default just isn't legal. Then there is the definition of the debt itself. Opinions range from just bond holders, while others claims that bond-holders, social security and pension recipients are clearly part of the debt.

Another problem is that the Congress had authorized the President to spend the very funds they claim can not be paid because of failing the debt ceiling. This would bring the President into conflict with his own constitutional obligation. So what is someone to do?

The Washington Post opined that President Obama would face enormous blowback if he invoked it. It also claimed that it might benefit the Republicans unless the Democrats put in place a serious plan to reduce the debt. But this is all Beltway opinion since Americans are concerned about default and the state of the economy and not the deficit. This has been true throughout this phony debate. Only people in the Beltway care about the national debt. As has discussed by policy wonks on all sides, the solutions to the debt are rather simple. It's just there is no political will to solve the issue because Republicans resist any idea to increase revenues.

President Obama is already implementing the 14th Amendment in his talks with bondholders. He assures there will not be a default. In fact, even if the debt ceiling isn't raised, then they will be paid off first and so there will not be any default. As we saw two days ago, Moody backtracked, saying that the United States would retain its AAA rating with an asterick that it would be looked at months down the road. What was that about?

The reason the clause of the 14th Amendment was created was because a group of Southern congressmen were re-entering the Union and it was feared that they would object to the United States having the ability to pay off the enormous debt the North took on in fighting the South in the Civil War. The parallels are similar to today with the teabaggers becoming a faction of Congress. The consequences today, however, would be global in nature and have a lasting impact on America's position in the world. And all this would simply be self-inflicted.

Constitutional scholars differ on how wide President Obama's discretion is in invoking the 14th Amendment. Obama's legal mentor and professor, Laurence Tribe believes the President has large powers in this case. Others support Tribe's view with the "hidden powers" contained in the executive branch. Still others believe he should make the case that he is invoking it as a rare event.

Democrats like Sherrod Brown are very reluctant to support this option because he believes members of Congress have taken an oath of office and should be able to handle the debt ceiling issue. But as has become evident, the credit of the United States can not be held hostage by a militant minority. That much should be made clear.

Basically,the politicization of the debt ceiling has already made it into a constitutional issue. Rather than game this on who wins or loses politically, it's time we get rid of it as unconstitutional.

Will this settle it? No, we will again have to face within six weeks another attempt by the House to shut down government. This will happen even if the Grand Bargain with $4 trillion in cuts had been reached. It's time President Obama flex his muscles and invoke the 14th Amendment. He'll be surprised as will Beltway pundits how popular the move will be.