The 14th Amendment: Once More, With(Out) Passion

 As the nation approached the August 2 deadline for resolving the debt crisis, a chorus of voices arose, mostly on the Left, urging President Obama to end the budget impasse by unilaterally invoking the 14th amendment. That Civil War-era amendment contains a clause, Section 4, which reads: “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, should not be questioned.”  According to proponents of this idea,  by invoking the 14th amendment, President Obama negated any need for Congress to vote on raising the debt limit, since under the Constitution the government is obligated to pay its debts, congressional approval or not.  Under this plan, Treasury Secretary Tim Geithner would be ordered by Obama continue borrowing money to pay the government’s debts.   House Republicans, went the argument, would be in no position to stop Obama, since he could say his action was necessary to prevent the nation from enduring the calamity that would occur if it defaulted on its debt.  If Republicans pursued the matter in court, the issue would take months to resolve – assuming the Court even took up the case.  Meanwhile, the debt crisis would be averted.

As I discussed in an earlier post,  this was an absolutely terrible idea.  And yet, as it appeared we were on the brink of default, more and more people sincerely believed Obama was preparing to take this drastic step.  Harvard professor Paul Peterson, in a guest post on this blog, made perhaps the most cogent case for why Obama might be preparing to do so.  I confess that when I read Paul’s post, I thought he was acting as provocateur – a role Paul has played very effectively in the past.  (Full disclosure: Paul was a former colleague of mine at Harvard and served on my dissertation committee there as well).  But if Paul was operating as intellectual gadfly, others quite sincerely thought Obama was preparing to end the crisis by invoking the 14th amendment.

Let’s be clear – and I said this before the debt deal was consummated – Obama was never going to invoke the 14th amendment. In my previous post, I laid out the reasons why this made no political sense, but let me briefly review the logic driving my argument.  The mistake proponents of the 14th amendment route made is to think the end goal was to solve the debt crisis on terms favorable to Obama.  If Obama could end the standoff without giving away the budget store in negotiations, he would be judged as having “won” the debt debate. But, from Obama’s perspective, this narrow focus on the debt negotiations missed the bigger picture.  Obama’s actions in the debt debate, by necessity, were driven by his electoral calculations looking ahead to 2012.  It was never simply about “winning” the debt clash – it was about solving it with the least political controversy in order to move it off the table. Invoking the 14th amendment would have had the opposite effect – it would have guaranteed that the issue remained simmering on the front burner for the next year, and it almost certainly would have become a Republican rallying cry – Obama as dictator! – in the coming presidential campaign. Partisans on the Left, as is their wont, became so focused on beating the Right in the debt game that they lost sight of Obama’s larger political interests.  And this is a problem for issue activists on both sides of the political aisle more generally – they tend to approach each battle with a scorched earth, take no prisoners, it’s us or them mentality.  Presidents, however, cannot afford this zero-sum approach to political conflict because, under our system of shared powers, they must actively collaborate with Congress to get most anything done.

But there was a second reason why Obama would not invoke the 14th amendment – it is not in his political nature. Longtime readers should not be surprised by my claim. In several previous posts dating to before Obama’s inauguration, I have pointed out that he is not a risk taker, and he is not one who makes decisions based on emotion.  In a December, 2008, blog post titled Obama the Centrist I noted that as early as his days as editor of the Harvard Law Review, Obama had a penchant for splitting differences, avoiding controversy and minimizing risk.  Caution, pragmatism and the politics of moderation are in his DNA, and nothing that has happened in his presidency to date has persuaded me otherwise.

Invoke the 14th amendment?  It was never going to happen.

7 comments

  1. He could have been pragmatic without coming across like a nervous Nellie.

    Hearing him talk about his “legal counsel” advising against the 14th was painful. No American thought “Wow. He’s doing his research.” What purpose did that serve except to make him look impotent.

    I agree that 14th and coin seignorage weren’t options. But why show your cards??? Just simply say you are going to get the ceiling raised come hell or high-water.

    Even if progressives hate his health care, it still seemed like him being a “winner”. This felt totally different. Even if he had few options like you say, he could have acted Presidential and reassured the public. The best comment was the unnamed Dem who said he came across like a peevish professor.

  2. Adam,

    My guess is he didn’t want to make a threat – invoking the 14th – that he wasn’t prepared to carry through, for fear the Tea Party, which would have liked nothing better than a constitutional crisis, called him on it. As for being a peevish professor – that was my point: he is a professor (or at least was in a previous incarnation). And that’s what a lot of people liked about him; in contrast to Bush he seemed less emotional, more reasonable, more committed to acting after careful deliberation. Now, of course, those traits seem to some like liabilities.

  3. Threatening to use the 14th only “scares” the GOP and Tea Party into negotiation if you assume they care more about policy than getting reelected.

    A friend recently posted the following NYT article on facebook which I think might be interesting to critique under the framework of his blog. Apparently psychologists still haven’t figured out the fundamentals. I tried to give my friend a better appreciation of “the rules, norms, laws and institutional constraints and incentives that largely determine how much power presidents have” (as you put it in a recent post) that predetermined the centrist nature of Obama’s Presidency. I think this blog has left a lasting impression on me.

    http://www.nytimes.com/2011/08/07/opinion/sunday/what-happened-to-obamas-passion.html?_r=2&pagewanted=1

  4. Your earlier post on the 14th amendment (7/19) was also a bit off with this prediction:

    “This is a debate worth having, and it almost certainly will end in compromise, with Republicans conceding to raise revenue through closing various tax loopholes and Democrats agreeing to spending cuts.”

    Best, Will

  5. Will – I concede the point – for the moment. Because of the decision to postpone the endgame, pending the recommendation of the special joint committee, I am sticking to my prediction.

  6. Hey guys you should check out my video i have researched the 14th amendment up and down know every part to it. Most of our officials who press this unconstitutional amendment on us do not even know what is it in it. There is NOTHING in the 14th amendment that will save us from the current debt crisis only pulling out of the many wars we pres around the globe and booting out the lobbyist in Washington will save us. My video is here at http://www.dirtyunclesam.com it is 43 minutes long so be prepared to stay awhile and learn a few things. I have a full video and document’s library all free no sign up or personal info needed. Bruce Ray Riggs FL 5th Cong. Dis. 2012

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