Could Obama raise the debt ceiling by himself? Experts disagree

McClatchy NewspapersJuly 27, 2011 

WASHINGTON — With time running out to avoid Tuesday's debt-default deadline, two Democratic leaders of the House of Representatives renewed calls Wednesday for the president to resolve the standoff all by himself by invoking an obscure provision in the U.S. Constitution.

But White House Press Secretary Jay Carney insisted that fix won't fly.

"There are no off-ramps," Carney said. "There's no way around this. There's no escape."

Carney's remarks came after suggestions by Rep. John Larson of Connecticut, the House Democratic caucus chairman, and Assistant Democratic Leader James Clyburn of South Carolina that Obama draw on Section 4 of the 14th Amendment to the Constitution essentially to make an end run around Congress. Obama could simply assert that he holds authority to raise the debt limit to protect the full faith and credit of the U.S. government.

"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."

Carney dismissed the concept as an "esoteric constitutional argument," but he and President Barack Obama have acknowledged that the White House consulted attorneys to determine if it was an option. Obama said Friday at a town hall meeting that he'd talked to his lawyers and they "are not persuaded that that is a winning argument."

Still, the idea has sparked debate on legal blogs. It gained traction earlier this month when former President Bill Clinton said he'd raise the debt ceiling, citing presidential authority under the 14th Amendment, "without hesitation, and force the courts to stop me."

Section 4 of the amendment, added after the Civil War, states that "the validity of the public debt of the United States, authorized by law ... shall not be questioned." It was intended to ensure that Southern states readmitted to the union would not be able to avoid helping to pay off the Union debt.

However, Section 5 reads: "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article." No mention of the president.

Stephen Griffin, a constitutional law professor who taught a spring course on the amendment at Tulane University, notes that other sections of the Constitution place responsibility for spending — and borrowing — squarely on Congress, not the president. Article 1 Section 8 states that the Congress shall have the power "to borrow money on the credit of the United States."

"One thing a Constitution is about is assigning roles to the government," Griffin said. "It doesn't assign any role to the president to magically come up with money. I'd like to be sympathetic to a novel argument, but there's no magic here. If there's a failure, the ball lands right back in Congress's court. Only they can pass measures to get us out of this."

However, Neil H. Buchanan, an economist and law professor at George Washington University, suggests that Obama may have no other choice if Congress fails to reach a deal lifting the debt ceiling. He says the 14th Amendment strengthens the case that the president has inherent discretion to prevent the U.S. from defaulting on its obligations.

He noted in a commentary earlier this month that the Supreme Court's only discussion of Section 4 — in a 1935 case — "made clear" that Section 4 was "not limited to its time period.

"If Congress has enacted laws that create public obligations, then those obligations must be met," he wrote.

Buchanan suggested Wednesday that Obama still may do it if he finds no alternative.

"What they are saying today may not be a very reliable predictor of what they'll be saying tomorrow or Saturday or next Tuesday," Buchanan said. "If negotiations have broken down and we're really facing that, I wouldn't be surprised if he found a new religion and said the financial markets have made it clear that if we fail to pay our bills, then our credit rating is going to be shot."

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McClatchy Newspapers 2011

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