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Reflection, Not Rhetoric: Constitutional option?

Editorial Staff

Can Obama use the 14th Amendment to raise the debt ceiling?

As the debate about the federal debt ceiling and federal budget rage, one hotly-contested solution involves a previously obscure section of the Constitution: Section 4 of the 14th Amendment.

Some people are arguing that President Obama should cite the 14th Amendment and unilaterally raise the debt ceiling, bypassing Congress entirely; others disagree on the meaning of the section.

“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,” the Amendment .

Since the validity of the debt “shall not be questioned,” the thinking goes, President Obama could argue that any opposition to raising the debt ceiling is unconstitutional. Indeed, some Democrats, including Eliot Engel (D-NY), are calling for Obama to invoke the 14th Amendment, as we reported yesterday.

Nor is Engel the only one—in an exclusive interview with the National Memo, former President Bill Clinton said he would do exactly that “without hesitation, and force the courts to stop me.”

Clinton goes on to talk about his own raising of the debt ceiling and how then-Speaker Newt Gingrich was wary of using the debt ceiling as a threat in their budget battles. Criticizing Republican Congressmen for their handling of the budget fight, Clinton attacked the idea that the debt ceiling should be in the conversation at all.

“I think the Constitution is clear and I think this idea that the Congress gets to vote twice on whether to pay for [expenditures] it has appropriated is crazy,” he said.

Obviously, Bill Clinton has various reasons for doing what he does, and it seems clear that he’s trying to help Democrats by criticizing Republican lawmakers and giving his support to the so-called Constitutional option to help Obama.

But Obama responded to calls for the Constitutional option—and here’s where it gets interesting. While he did not categorically rule out invoking the 14th Amendment, he did make clear that he did not intend to use it.

“I have talked to my lawyers,” Obama said, “They are not persuaded that that is a winning argument.”

So while Clinton says that he would use the Constitutional option and “force the courts to stop me,” Obama seems to go one step further and predict that, should the matter be taken to the courts, it would not be “a winning argument.” The two Democratic presidents don’t necessarily disagree on the ability of the president to use the Constitutional option, but both also seem to recognize that the courts would have to settle the issue—and Obama doesn’t seem comfortable letting that happen.

The New York Times has an interesting article about the Constitutional option and how different scholars feel about it. Some disagree that the courts will even be involved, and others say it ultimately doesn’t matter.

Eric Posner, a law professor at the University of Chicago Law School, wrote in the New York Times with Harvard Law professor Adrian Vermeule that Obama does not need the 14th Amendment. Instead, they argue, the president’s fundamental role “as the ultimate guardian of the constitutional order” means he needs to do what is required to protect the nation, in this case raising the debt ceiling. They also point to Lincoln’s suspension of habeas corpus as historical precedent.

Now, here’s where it gets really, really interesting.

Before he was Barack Obama, POTUS, he was Barack Obama, senior lecturer at the University of Chicago Law School. So first of all, Obama’s being told by his former colleagues that he should unilaterally raise the debt ceiling. But one step further into Interesting Land? Before he was Bill Clinton, POTUS, he was Bill Clinton, law professor at the University of Arkansas, teaching constitutional law!

So Clinton and Obama, both Democrats, are Constitutional law scholars—and they disagree! On the Constitution!

Of course, it’s not that surprising or controversial, given the complexity of the Constitution and its difficulty to interpret. But what’s important here is that nothing is quite as clear-cut as some would like to make it.

Sure, there’s a “Constitutional option”, but it’s not clear that it could be used the way it’s being discussed, and there’s no consensus on which way the Constitution could even be applied to the debt ceiling fight.

Posner and Vermeule bypass the Constitutional option altogether, but only by taking a more drastic measure. It’s not clear whether failing to raise the debt ceiling will be a threat to the Union on the level of the Civil War, but it is clear that something needs to be done, and fast.

But the solution probably isn’t to try making an argument that no one can agree on—including your friends. We need our Congressional leaders to stop with the distractions and to finally, at the last minute, come up with some sort of compromise.

With the country hurtling toward crisis, people are disgusted by the politics. Enough. Right now we need leaders, not politicians.

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