Is Obama Planning to Invoke the 14th Amendment to End the Debt Crisis?

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           In an earlier post that received not a little attention, I made the case for why arguments that  Obama should invoke the 14th amendment to settle the debt impasse were not just constitutionally dubious – they were politically stupid, not least for Obama.  As the default deadline looms larger, however, the crazy talk won’t die. House Democrat James Clyburn  is the latest public figure to make the case for invoking the 14th amendment.  As the pressure to do something to settle the impasse intensifies, will Obama take the plunge?

In this guest post  cross-listed at his EducationNext website, Harvard political science Professor Paul Peterson explains why he just might:

How Obama will End the Debt Crisis on his Own Hook: The NCLB Precedent

            If the No Child Left Behind (NCLB) stalemate provides a precedent, President Obama will use an executive order to raise the debt limit, invoking the 14th Amendment as his constitutional bedrock. Though never done before, that action will, in an instant, give him the “Clean Bill” he requested from Congress—an increase in the debt limit through election day, with no cuts in spending, no nothing.

Here is the relevant clause from the 14th Amendment: The validity of the public debt of the United States, authorized by law… shall not be questioned.

            The language is ambiguous. The context for these words  refer to the immediate Civil War situation, as the amendment makes clear that the United States refuses to honor the debts of the seceding states  insists that its own debts are inviolable.  But the amendment’s language is broad enough that a president could claim those words give him authority to raise a debt ceiling by executive action. It might take the courts years to say he was wrong.

The New York Times, whose articles often reflect Obama Administration thinking, has run at least two stories suggesting that the 14th Amendment allows the president to raise the debt ceiling on his own. Already, at least one Democratic member of Congress has insisted that the president should take such action. And it should be noted, above all, that Bill Clinton has told reporters that there is no doubt in his mind that he would have invoked 14th Amendment authority had he faced this situation.

            Obama already had shown he is more than willing to use executive power when faced with opposition on Capitol Hill.  With presidential backing, Arne Duncan, Secretary of Education, has announced that states can get a waiver from NCLB requirements should they agree to  Obama Administration’s Race to the Top guidelines.  Substituting presidential preferences for explicit laws passed by Congress is an extraordinary invocation of executive power, but Duncan says it is necessary to take such actions because of the legislative stalemate.  Well, that NCLB stalemates is small potatoes compared to the debt crisis agonizing the nation today.

So if President Obama is willing to gut NCLB on his own hook, there is no reason to think that he will hold back once the debt crisis reaches its 11:59th hour.  Indeed, a plan to invoke such authority is a likely explanation of presidential actions thus far.

            So far the president has made no explicit publicly presented proposals to resolve the crisis other than calling for a “Clean Bill,”—that is, no spending cuts whatsoever—which is exactly what the executive order would achieve. At one point Obama and Speaker Boehner were alleged to have come close to a “grand bargain,” but at the last minute the president killed that supposed deal by demanding a 50 percent increase in tax revenues, an extraordinary last-minute demand that implied the president did not take the negotiations seriously. Most certainly, they brought the negotiations to an end, as Boehner no longer trusted his negotiating partner.

As strange as that perverse presidential action was, it is understandable—even predictable, if he–from the very beginning–sought a crisis that would force executive action to save the nation from bankrupty.

Nor have the president’s Democratic allies in the United States Senate shown any desire to bring the crisis to an end.  From Harry Reid, there is talk of possible legislation, but, as of now, no bill has yet been brought to the floor for action. Is this because Reid has been unable to get the super majority he needs, or is it part of the plan to create the crisis requiring the invocation of the 14th Amendment?

Assume Speaker Boehner in the House of Representatives manages to rein in the Tea Party and gets his bill through the House.  Assume the Democrats in the Senate refuse to agree to the House legislation and are unable to pass any legislation on their own. At that point, if the president wanted to solve the problem through legislative action could publicly ask the Senate Democrats to reach a compromise with Boehner.  He would very likely succeed, as their future is tied to his.

But perhaps the president wants a stalemate, so he can invoke his executive authority. At that point he says nothing other than to blame the Republicans for the crisis. Then, if the Senate does not act, the president can say he is left with no choice but to invoke the ambiguous language in the 14th Amendment.  He can issue an executive order raising  the debt ceiling—despite the fact that no president previously has ever dared to do just that.

            There is a risk.  The public could become outraged at such a usurpation of legislative power.  Certainly, the Republicans will say that he has become a modern-day Caesar, seizing the powers of the legislative branch for his own purposes.  But the president, whose poll numbers currently are falling, may gamble on the fact that such an exercise of presidential authority could solidify his image as a strong president.

            There is nothing in Obama’s presidential history that suggests that he is unwilling to make such a gamble.  Remember stimulus, remember Obamacare, remember the election of 2010.  In each and every case, Obama went “all in.”  He is not a compromiser; he plays his hand carefully but he is not afraid of trying to run the table.

            I am not saying this will happen. But if Obama’s handling of the NCLB stalemate provides any precedent, then debt limit lifting by executive action is as likely as any other outcome the prognosticators are forecasting.

4 Responses to Is Obama Planning to Invoke the 14th Amendment to End the Debt Crisis?

  1. Matthew Dickinson says:

    In an email to me, my Middlebury colleague Murray Dry and constitutional law scholar responds to Paul Peterson’s guest blog above. With Murray’s permission I repost his response here:

    “The issue you describe resembles Lincoln’s suspension of the writ of
    habeas corpus but is even more striking: as the location of the suspension
    clause (in article one) implies that the action should/must be Congress’s,
    the enforcement clause in the Fourteenth Amendment explicitly refers to
    Congress. One could argue that an emergency is an emergency and the final
    constitutional arbiter of such action should be the people through their
    responses and ultimately the election of 2012. However, how the people
    judge such an extraordinary action may depend on whether they think the
    President truly had no choice or whether they conclude that he did not
    negotiate in good faith. Your comments suggest either possibility.

    Murray”

  2. Michael Cohen says:

    A few things about this post. First while it is true that earlier Presidents did not dispute Congresses power over controlling the level of national debt most if not all earlier votes were rubber stamp one sentence bill affairs. Thus it appears the current strategy to use the ceiling to exact concessions is novel.

    Second the Conservative argument made here assumes the Congress has the ability and would compromise. They indeed compromised. Faced with both popular disapproval and Wall Streets warning they indeed struck a deal. In order for the Compromise to occur, the President had to not state what he would do in the event of a Congressional failure to come to agreement, otherwise the Congress would have no incentive to agree. This still leaves open the question as to what the President SHOULD HAVE DONE IF CONGRESS DEFAULTED. The argument so far involves not what Obama should do in the face of a Congressional Default BUT WHAT HE SHOULD SAY PRIOR TO THE EVENT.

    If a sovereign default is indeed as bad for the economy as was currently stated he would have no choice in my opinion but to declare a national emergency and order the Treasury to raise the debt ceiling. This would provoke a legitimate constitutional crisis as should have Lincoln’s suspension of Habeaus Corpus but such might have been necessary. After all, if somebody invaded Washington and the President waited for Legal Approval to defend one would frankly call this irresponsible. In our system, the President serves as the sane person of last resort or so it appears.

  3. Matthew Dickinson says:

    Mike,

    Your argument seems to suggest that had Congress not raised the debt limit, the president would have been obligated to take extraconstitutional steps to, in effect, save the Constitution. That’s consistent with a Lockian interpretation of prerogative powers, and certainly is, at least in appearance, similar to Lincoln’s justification for suspending habeaus corpus. But note that using your reasoning Obama need not invoke the 14h amendment to do this – he can simply cite his inherent emergency powers to preserve and protect the country.

    Whether Obama would have done so is a fascinating but fortunately (for now) moot question.

  4. Bruce says:

    The 14th amendment wioll not save anyone from anything in fact it is the reason are standing as citizens of a great country are now citizens of a corporate servitude state. http://www.dirtyunclesam.com explains alot of the foul play that has torn are country to shreds.

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