The 14th Amendment: A Debt Ceiling Back-Up Plan?

Jul 20, 2011 3:00pm

gty us constitution nt 110720 wb The 14th Amendment: A Debt Ceiling Back Up Plan?

ABC News' Amy Bingham reports:

With political stalemate hovering above the debt limit negotiations, some people are turning to the Constitution in search of a last-ditch plan to avoid all-out financial disaster.

Former President Bill Clinton and some constitutional scholars have argued that the 14th Amendment gives the president authority to raise the debt ceiling without congressional approval.

Read more about Bill Clinton's 14th Amendment stance here.

Clinton said this week that if he were in President Obama’s shoes, he would invoke the amendment to raise the debt limit “without hesitation, and force the courts to stop me.” 

But many congressional Republicans do not agree. Rep. Tim Scott, R-S.C., said it would be “an impeachable offense” for Obama to “usurp congressional oversight” and raise the limit on his own. Sen. Ron Johnson, R-Wis., said Congress would “take him to court” and Sen. John Cornyn, R- Texas, said it was “crazy talk.”

Read more about the latest debt ceiling negotiations here.

The debate boils down to 10 words in Section 4 of the 14th Amendment, which, after pulling out a pocket-sized Constitution paper-clipped to the 14th Amendment, Treasury Secretary Timothy Geithner insisted on quoting in a June interview with Politico.

“'The validity of the public debt’ … – and this is the important thing—‘shall not be questioned,'” the head of the Treasury said.

Neil Buchanan, a constitutional law professor at George Washington University Law School, said defaulting on America’s debt violates this part of the Constitution because it would undermine the trustworthiness of the country’s debt.

“The 14th Amendment is there to say the U.S. government is committed to always making sure that its obligations are honored,” Buchanan said. If the United States goes into default, it “will do exactly what the 14th Amendment says cannot happen.”

Sen. Chuck Grassley, R-Iowa, said it would be up to the courts to decide if “the Constitution provision would trump” the debt-ceiling law.

"But who's going to argue against the Constitution? It's the basis of our government; it's the law of our land, and everybody has to abide by it," he said, according to the Huffington Post. "The Constitution trumps the law, obviously,"

But Laurence Tribe, a constitutional scholar at Harvard University, argues that only Congress has the authority to regulate U.S. debt. He said any presidential attempt to continue borrowing without congressional approval would therefore violate the constitution, and the Treasury Department agrees.

 “The Constitution explicitly places the borrowing authority with Congress, not the president,” George Madison, the Treasury’s general counsel, said in a statement. “Secretary Geithner has never argued that the 14th Amendment to the U.S. Constitution allows the President to disregard the statutory debt limit.”

Tribe, who was one of Obama’s professors in law school, said the president understands constitutional law “as well as anyone.”

“He would have no illusions about his constitutional authority in this context,” Tribe said. “He would understand that if he tried to take unilateral action that would not in itself solve the problem.”

Obama dodged the 14th Amendment question in a Twitter Town Hall July 6.

“I don't think we should even get to the constitutional issue,” Obama said.  “Congress has a responsibility to make sure we pay our bills.  We've always paid them in the past.”

But Buchanan said if Aug. 3 comes and Congress has not fulfilled its responsibility to pass a debt increase, the president will have to choose between three unconstitutional options.

“You’re choosing between having the president without authority raise taxes or without authority cut spending or without authority raise the debt ceiling,” Buchanan said. “You have to sort of decide which is the least bad.”

Buchanan said he would choose the debt ceiling because “it seems a little troubling but doesn’t even come close to evil.” Raising taxes or cutting spending without congressional approval would mean a “much bigger, scarier imperial presidency,” he said.

Tribe said that if Obama chose to continue borrowing money without the Congress' OK it would be “a fundamental departure from all of our historic traditions.”

“I think it is something that should be avoided at all costs,” Tribe said. “Once the president floats out into Constitutional outer space without the backing of Congress behind him, it’s anybody’s guess how much confidence creditors around the world would have that those debts would be repaid.”

Tribe said that while past presidents, such as Abraham Lincoln, have purposefully violated the Constitution. When Lincoln unconstitutionally suspended the right of habeas corpus during the Civil War, he did so to prevent Maryland from seceding and therefore the country from breaking apart.

 But the latest situation, Tribe said, is not “such an existential crisis” that the president would have to “sacrifice the whole union in order to obey the Constitution.”

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