As Republicans continue to play chicken with the nation’s solvency, the idea that the president doesn’t need congressional approval to raise the debt ceiling is gaining traction. The thought bubble suggests that President Obama can raise the debt ceiling because of language in the Fourteenth Amendment stating that the nation’s debt “shall not be questioned.”

The idea has been trumpeted by none other than former president Bill Clinton. Clinton said that he would unilaterally raise the debt ceiling and “force the courts to stop me.”

Of course, President Clinton had what the scientists call “balls.” He knew how to handle a group of intractable Republicans more concerned with scoring political points than governing.

President Obama? The New York Times has his response: “I have talked to my lawyers. They are not persuaded that that is a winning argument.”

Can Aaron Sorkin please write a “Let Obama Be Obama” episode? Because sometimes Barack Obama really likes to dangle his feet in the water of whatever the hell it is he dangles his feet in, when he wants to make it look like he’s trying without pissing too many people off.

In any event, is invoking Section 4 of the Fourteenth Amendment a “winning” argument that could solve this debt crisis?

The New York Times asked a bunch of lawyers and constitutional scholars if the 14th Amendment provided an escape clause on the debt ceiling. They found one guy who thinks it does:

The words of the provision are in important ways quite vague. “Nobody would argue,” said Sanford Levinson, a law professor at the University of Texas, “that Section 4 is clear in its meaning, other than at the time everyone thought that the South, if they ever got back in control, would not pay Civil War debt.”

But Jack M. Balkin, a law professor at Yale, said it was possible to infer a broader principle.

“You’re not supposed to hold the validity of the public debt hostage to achieve political ends,” Mr. Balkin said. He added, though, that “Section 4 is a fail-safe that only comes into operation when everything else is exhausted.”

Hmm… well, if the provision is there to prevent a political party from refusing to pay for the nation’s wars, it does seem at least somewhat relevant here. At least if we’re going to look at the original intent of the Amendment.

But hey, I’m the guy that believes the Constitution should be interpreted in a way that makes sense at the current time. And based on any modern understanding the situation, a fail-safe designed to deal with reintegrating rebels back into your government has little to do with today’s political squabble.

Speaking of interpretation, the president’s reading of the 14th might be the only one that matters. This question may not be decided by the courts:

“This is not a circumstance,” said Laurence H. Tribe, a law professor at Harvard, “in which the courts have any plausible point of entry.”

Professor Balkin agreed. “This is largely a political question,” he said. “It is unlikely courts would decide these questions.”

Some law professors have put forward possible legal claims that might overcome threshold requirements for lawsuits, like the one in which plaintiffs show that they have been directly injured and so have standing to sue. “It’s unthinkable,” Professor Tribe responded, “that the courts would allow a gimmicky lawsuit to proceed.”

You know what would make this a lot easier? If Congress released the country from the train tracks and attempted to govern.

The 14th Amendment, the Debt Ceiling and a Way Out [New York Times]


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