Being the Change I Wish to See

In response to a comment on my post Can the President legally raise the debt ceiling? a reader raised a very good question. It’s inflammatory, but I’m posting it as a verbatim quote. Please argue with the commenter about his/her language.

I have not read anywhere of a timeline if the prez raises the debt ceiling? If he invokes the 14th Admendment, HOW LONG DOES THE CEILING LAST??????? Six months? A year? Until it’s struck down by the neo-fascist supreme court majority? –venire23

I believe the President could raise the debt ceiling by invoking his emergency powers and the 14th Amendment. (Full disclosure, I’m not a lawyer, let alone a Constitutional lawyer). Here’s my argument.

The President would invoke the 14th Amendment if Congress fails for any reason to get a debt ceiling bill to his desk before midnight on August 1, 2011. At midnight, the date will change to August 2, and the U.S. will officially be in default. The President will therefore be compelled to act immediately.

The President’s debt ceiling would remain in force until Congress passes a new debt ceiling of greater or equal amount and time period to the President’s amount and time period. If Congress tries to pass a debt ceiling bill that doesn’t meet the President’s demands, he can veto the bill.

There is no precedent on this issue. There is a precedent of use of presidential extraordinary action. President Harry S. Truman invoked emergency powers and took extraordinary measures to avert a steel workers’ strike at the start of the Korean War. He was sued in 1952 and eventually lost, but between the time he nationalized the steel mills and the case was settled, his actions avoided the strike and the war was over.

There is no specific precedent of invoking the 14th Amendment to raise the debt ceiling. Section 4 was included in the 14th Amendment to make sure the Union’s Civil War debts were paid and the Confederacy’s debts were not paid with federal money.

I argue that the Supreme Court would not strike the President’s actions down because:

• The President has emergency powers to step in and protect or save the country in case of a crisis, which this would be.
• The 14th Amendment clearly states America will pay all its debts without question. That means the Supreme Court would have to uphold it no matter what they want to do.
• When there is a conflict between a law and the Constitution, the Constitution trumps the law.
• There are 2 conflicting laws in force at the same time: the budget law, passed by Congress; and the debt ceiling law, also passed by Congress. The Supreme Court would have to revoke one law to uphold the other. They would not revoke the budget law to uphold the debt ceiling law. If they did that, the entire budget would be revoked and nothing would be paid. The country and economy would come to a screeching halt. That would be unthinkable.
• The President would have to wait until the crisis becomes real, at midnight on August 2. By the time the House sues the President over invoking emergency powers and gets it to the courts, they will have (hopefully) realized the error of their ways and fix the problem, because we’ll be in a depression.
• Therefore, the courts will likely refuse to hear the case at all.
• The President will have averted economic Armageddon. He will be viewed as a hero, and the House Republicans will be the villains.
• The Roberts Court would not want to give President Obama such a huge trophy by dragging this out any longer than necessary, and would likely not hear the case.

As far as legal action against President Obama is concerned and the House’s desire to impeach him:

The plaintiffs in those cases [see full article] were able to demonstrate standing, the legal doctrine under which parties must show they are harmed in order to bring a case in court. Anyone suing Obama over the debt ceiling would confront that same burden.

It wouldn’t be enough for a plaintiff to claim that Obama is overstepping his authority or acting illegally. “In order to sue, you have to have injury in fact. The touchstone issue is, can someone get to court?” said Jonathan Zasloff, a law professor at the University of California, Los Angeles.

That same standard would apply if a party pre-emptively filed a lawsuit to stop Obama invoking the 14th Amendment.

Challengers might argue that relying on the 14th Amendment to raise the debt ceiling qualified as an abuse of executive power. But it would be extremely difficult for them to show that they would suffer specific harm such as lost money, property or rights, legal experts said. –Jonathan Zasloff, law professor at UCLA

There should be no debt ceiling law. Congress should repeal it. If a budget is passed into law, it’s deficit should be automatically covered by the same law. The deficit is required to be covered because that money has already been spent. That’s where and how it should be handled, in my opinion.

What is your argument for or against the President’s use of emergency powers?

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Can the President raise the debt ceiling to keep the country from defaulting on its financial obligations using his emergency powers? This is an interesting question that hasn’t ever been tested.

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It would involve the President’s emergency powers to invoke the 14th Amendment if the House refuses to act and pushes us into a default. There are differing opinions on when it would be legal and/or appropriate for a President to use this emergency power.

When the nation hits a crisis, the President is Constitutionally bound to act immediately to save the country. If he is forced to act on his own, there would be questions about the validity of the debt the president authorizes, and it would likely end up in court. Given the gravity of the circumstances, it is very unlikely the President would be found to be in the wrong.

Financial markets may accept the President’s authority, and that would solve the crisis, even if Republicans in Washington D.C. called those actions into question. If markets decided not to accept that authority; big trouble.

I imagine if the president were forced to act alone, the last thing on Republicans’ minds would be the legality of the president’s actions. They’d be too busy running from their constituents who would be chasing them with pitchforks and torches as the world economy goes BOOM! (Note to self: stock up on pitchforks and torches to sell to friends and neighbors).

But could the president act sooner than when the crisis is already occurring? Does he have to let the country fall over the cliff before he can grab a rope to try to pull us back? President Bill Clinton advises going ahead and invoking emergency powers now and making the House and courts challenge President Obama.

In the case of failing to raise the debt ceiling very soon, the U.S. might already be in serious economic trouble before the August 2 deadline.

Bond ratings could be dropped at any time now, and so could our credit rating — the full faith and credit of the United States. They could be questioned and found inadequate by the financial markets. This could happen when the markets are open today, or Monday, or any business day from now until we have a high enough debt ceiling. We have no idea how long the markets will be willing to have confidence in us.

House Republicans don’t seem to understand that holders of U.S. bonds and currency won’t accept our word that even though we defaulted, the check in the mail is still good.

The markets won’t give them that much of a pass, no matter what they promise can be done to prioritize spending the money that is still in the treasury. There is no legislation in place to govern such prioritization, so it can’t legally be done by a priority list they make up on the fly.

This is not fear-mongering or misinformation. The debt ceiling is a real number, a fact of our government financial system, and requires immediate attention.

A debt ceiling is not necessary since Congress legislates the budget that contains the deficits that will turn into debt. They could avoid the whole conflict by repealing the early 1900′s law that instituted a debt ceiling.

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