Gosh, isn't it convenient that Associated Press reporter Jim Abrams, in a Wednesday evening dispatch ("Democrats say Obama should invoke 14th Amendment"), was able to find "some legal scholars" who believe that President Obama can invoke Section 4 of the 14th Amendment to the Constitution to ignore the nation's current debt ceiling and have the government go out and borrow more money, but "somehow" didn't name any? Not only that, he didn't even tell readers why 14th Amendment power creationists might be wrong, let alone find "some other" dissenting legal scholar to explain why. Instead, he instead went to White House spokesman Jay Carney, who only said that the president doesn't have such authority.
I suspect that Abrams' "oversight" occurred because the only "legal scholars" he could have cited would have been uncomfortable Democrats in Congress who don't want to be on record voting against any and every effort to control spending which might be attached to whatever bill or bills House Republicans might attempt to pass -- a matter of fierce internal GOP debate as of late Thursday evening.
Even Harvard Professor Lawrence Tribe, that lefty of all lefties, in a New York Times op-ed earlier this month ("A Ceiling We Can’t Wish Away," with "We Cannot Pretend the Debt Ceiling Is Unconstitutional" as its browser window title), couldn't abide this ridiculous argument. He also included a now-ironic (and bolded by me) assertion about the Constitution by President Obama himself in his second-last paragraph:
Several law professors and senators, and even Treasury Secretary Timothy F. Geithner, have suggested that section 4 of the 14th Amendment, known as the public debt clause, might provide a silver bullet. This provision states that “the validity of the public debt of the United States, authorized by law ... shall not be questioned.” They argue that the public debt clause is sufficient to nullify the ceiling — or can be used to permit the president to borrow money without regard to the ceiling.
Both approaches provide the false hope of a legal answer that obviates the need for a real solution.
The Supreme Court has addressed the public debt clause only once, in 1935, in the case of Perry v. United States. The court observed only that the clause confirmed the “fundamental principle” that Congress may not “alter or destroy” debts already incurred.
Some have argued that this principle prohibits any government action that “jeopardizes” the validity of the public debt. By increasing the risk of default, they contend, any debt ceiling automatically violates the public debt clause.
This argument goes too far. It would mean that any budget deficit, tax cut or spending increase could be attacked on constitutional grounds, because each of those actions slightly increases the probability of default. Moreover, the argument is self-defeating. If it were correct, the absence of a debt ceiling could likewise be attacked as unconstitutional — after all, the greater the nation’s debt, the greater the difficulty of repaying it, and the higher the probability of default.
... The Constitution grants only Congress — not the president — the power “to borrow money on the credit of the United States.” Nothing in the 14th Amendment or in any other constitutional provision suggests that the president may usurp legislative power to prevent a violation of the Constitution.
... Once the debt ceiling is breached, a legal cloud would hang over any newly issued bonds, because of the risk that the government might refuse to honor those debts as legitimate.
... A core function of the Constitution is to “force us into a conversation” about our future, Mr. Obama once wrote.
Tribe's Obama cite is intensely ironic, given that the President has yet to effectively join the conversation by presenting a detailed plan of his own. In fact, in his speech Monday night,
None of this stopped the AP's Abrams from spending 400 or so words on the 14th Amendment option, including a final paragraph containing a reference to "some legal scholars":
House Democrats said Wednesday that President Barack Obama should invoke a little-known constitutional provision to prevent the nation from going into default if Congress fails to come up with a plan to raise the debt ceiling.
Rep. James Clyburn of South Carolina, a member of the Democratic leadership, said he told fellow Democrats that Obama should both veto any House GOP plan for a short-term extension of the debt ceiling and invoke the 14th amendment, which says that the validity of the nation's public debt "shall not be questioned."
The White House has rejected resorting to this tactic to keep the nation from defaulting, questioning its legality, but Rep. John Larson of Connecticut, who chairs the Democratic caucus, said "we're getting down to decision time" and "we have to have a failsafe mechanism and we believe that failsafe mechanism is the 14th Amendment and the president of the United States."
Larson said Clyburn's proposal on the 14th Amendment was met with applause by other Democrats at their meeting.
The post-Civil War 14th Amendment guaranteeing citizenship to all people born or naturalized in the United States contains a provision that "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, shall not be questioned."
Some legal scholars have said the president can invoke that clause to keep the nation from defaulting on the debt, although there is no legal precedent for such an action.
The problem, as Matt Vadum explained in the American Spectator on July 5, is that Article 1, Section 8 of the Constitution says that "The Congress shall have Power ... To borrow Money on the credit of the United States." If Congress doesn't authorize it, it can't legally be done. That's about as airtight as an argument can get. Also, as Tribe noted, bond marketers and investors would have a hard time justifying taking an obvious legal risk by buying Uncle Sam's bonds in such a situation. (Snarky aside: But Ben Bernanke and his magical electronic printing machines probably wouldn't.)
As to the AP's Abrams, you're going to have to name names before I believe you actually spoke with someone about the constitutionality of the 14th Amendment debt-ceiling gambit. Until you do, I'm going to interpret "some legal scholars have said" to mean "I personally think it would be a cool idea, as do my Democratic buds in Congress."
Cross-posted at BizzyBlog.com.
