ABC News' Amy Bingham reports:
As fears intensify that Congress will not pass a debt limit increase in time to avoid default, some Democrats are pulling out their pocket Constitutions to find a back-up plan.
Assistant Minority Leader Rep. James Clyburn, R-S.C., said today that if a long-term deal is not struck by Aug. 2, President Obama should sign an executive order raising the debt ceiling without Congressional approval. He said this action would be justified because of a section in the 14th Amendment that states that “the validity of the public debt … shall not be questioned.”
"I am convinced that whatever discussions about the legality of that can continue," Clyburn said. "But I believe that something like this will bring calm to the American people, and will bring needed stability to our financial markets."
The argument is that a default would put the “validity of the public debt” in jeopardy, thus violating the 14th Amendment. And since the president took a vow to “preserve, protect and defend the Constitution” it would then be his responsibility to ensure that the country does not default.
But constitutional scholars are divided over whether the amendment would, in fact, justify the president to unilaterally take action on the debt ceiling.
Laurence Tribe, a constitutional scholar at Harvard University and one of President Obama’s former professors, told ABC News earlier this month that the 14th Amendment must be upheld by Congress, not by the president.
“It’s a tempting [argument], but I think it’s fundamentally fallacious because it assumes that the executive branch is the branch of government that has the ability to enforce the 14th Amendment. Section 5 makes clear it is Congress that has that power,” Tribe said.
Obama seems to agree. At his University of Maryland town hall July 22, the president said he does not believe he could use the 14th Amendment to raise the debt ceiling, even if there is no agreement by Aug. 3.
"I have talked to my lawyers," he said. "They are not persuaded that that is a winning argument."
But both the president and the Treasury Department have stopped short of saying Obama will not invoke the 14th Amendment if worse comes to worst. The idea is tempting, at least, to the president.
“Believe me, the idea of doing things on my own is very tempting,” Obama said Monday at the annual meeting of the National Council of La Raza.
Treasury Secretary Timothy Geithner told ABC News' Christiane Amanpour on Sunday that it is “not a workable option to limit the damage to the American people that would come from Congress to avoid a default crisis."
If the president does decide to use the amendment, House Democratic Caucus Chairman John Larson said today that “his caucus is prepared to stand behind him.”
“We have to have a fail-safe mechanism," said Larson, D-Conn. "We believe that fail-safe mechanism is the 14th Amendment and the president of the United States."
Some argue that raising the debt ceiling without congressionally-approved deficit reductions attached would not go far enough to avoid financial calamity.
In his testimony before the House Financial Services Committee today, the president of the credit rating agency Standard & Poor, Deven Sharma, said, "The more important issue is the long-term growth rate of the debt.”
Tribe also argued that if Obama went it alone, “It’s anybody’s guess how much confidence creditors around the world would have that those debts would be repaid.”
“I think it is something that should be avoided at all costs,” Tribe said. “The idea of violating the Constitution without the guarantee that it would solve the economic crisis seems particularly unwise.”
The Associated Press contributed to this report.