The debt clause in the 14th does not grant a presidential power

The Fourteenth Amendment to the Constitution is easy to look up.

http://caselaw.lp.findlaw.com/data/constitution/amendment14/

The first clauses guarantee equal rights for all citizens under the law in the aftermath of the Civil War. The first sentence of the fourth clause, which some people now imagine is relevant to the current debt ceiling struggle, only makes a general statement that US debt will not be questioned, but does not confer a power either to the president or to another branch of government.



In historical context, this isn't actually about United States debt. It's about Confederate debt. It says that the US renounces the rebel states' debts, but prefaces this (in the bolded sentence) with the assurance that no one should worry that this has anything to do with US debt. Again, no specific power to raise the debt ceiling (which is legislated, not constitutional) is either implied or granted to the president or anyone else.

Even if an attempt can be made to invoke the first sentence as implying a unilateral or emergency authority to raise the debt ceiling, lest the credit of the United States "be questioned," the White House (again conceding in advance) has already said they don't think the 14th gives the president that power. So it would be an unprecedented and risky move, probably reckless, given the makeup of the Roberts Court and the now existing videotape of Carney saying the White House doesn't believe the 14th amendment is relevant.

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Better to ask for forgiveness later than permission beforehand. We've all heard that one before, and I think it applies here too. It may just have to come to this. Certainly would show Obama to have some spine if he takes a bold step like this.

And he's not passing this off to the tender mercies of this Court.

It's a stretch to say that because of historical circumstances, the language of the law does not mean the things that it actually says. I doubt you'd argue that, because of the opening clause of the 2nd Amendment, framing the context of the law, that people don't really have a right to bear arms.

It's significant, of course, that the 14th doesn't specifically authorize the president to take action contrary to what the Congress legislates. What's really going on is that Congress, as a body, is refusing to carry out its constitutional responsibilities. Frankly, there's not any Constitutional remedy for that branch of government deliberately acting in bad faith. It's no wonder that people are grasping for straws.

re: the 2nd amendment construction and as to the affirmative obligations of Congress

Remember when the Bush* team of lawyers used the Safe Harbor provision in Bush v. Gore to defend stopping the recount in Florida weeks before the Electoral College would meet to tally the votes? That Safe Harbor provision was designed to force the states to dispatch their messengers delivering the votes as riders of the Pony Express to leave on time before the College met. That argument was helpful in negating the votes of 51 million people during Election 2000 in effectively handing the Presidency to Bush*. So much for historical context....

Obama can simply refuse to abide by the ruling. The only remedy for that would be for Congress to impeach him. There would never be enough votes in the Senate to convict.

And that case for impeachment would be at least as valid as the one against BC. In this case the intent of the amendment matters greatly and is very clear.

The stay would only have effect if Obama decided to follow it. The only remedy for Obama ignoring the stay would be impeachment.

As for impeachment, there would be nowhere near enough votes in the senate to convict.

Especially if there was a credible threat of legal action against them for following illegal orders?

So Obama while ignoring the stay himself would have to prosecute people for ignoring the stay.

Somehow, I don't see him having that much cognitive dissonance.

Remember, the conservative Roberts court likes the power of the executive. They might be more likely to find the existence of implied power to act in an emergency than the court that decided the Youngstown case against Harry Truman (on the different issue of whether a president has the power to seize private property in an emergency). Clarence Thomas cited the Youngstown case in his dissenting opinion in Hamdan v. Rumsfeld to argue in favor of executive power in a national emergency.

There's no way to know how this will play out in the courts because there is no precedent exactly on point.

I don't know why you think Clarence Thomas would feel constrained by a previous dissent to be logical and consistent.

We either sell off Ft. Knox or invade another country.

Canada looks pretty easy. Mexico has too many guns and they got all SA to back them up.

Canada is just sitting there all by itself and they are sitting on our oil!

_{i know i should not make fun of all this but its all so damn ridiculous}

I keed, I keed!

Ice-free Arctic shores and the unlimited devastation of tar sand oils beckon!

They are sitting on our oil. And thumbing their noses at us.

And making our health care system look stupid.

Remember this is the group that believes in the Unitary executive. They are also completely corporate dogs. If corporate America wants this done, they will obey, and corporate America most certainly wants the debt limit raised.

This is not about Obama making law. This is about Obama executing laws already passed by Congress. Every single expense made by the Federal government has been authorized by law by Congress. As such, Obama is well within his rights as chief executive to enforce the laws passed by Congress to pay the debts they have incurred. The debt limit itself is an unconstitutional restriction on the Executive Branch.

However, besides being for the unitary executive, the court majority is more accurately described as Republican, right-wing, super-corporate lapdogs. They don't care about consistency, they are more likely to attack Obama.

I should have added that Clause 5 of the 14th authorizes Congress, not the Executive, to take necessary action toward assuring the entire amendment is followed. Hard to get around.

And the elites most definitely don't want a complete economic train-wreck.

besides which, a big chunk of the ruling class is of the Tea Party/Randian persuasion.

plus, isnt the Prez' #1 job to defend the Constitution? Doesnt he have to defend the 14th against teabaggers?

federal checks under previously long dormant emergency powers that were used to issue $16T in lending to the banks during QE2.

Call it QE3. Please, see the discussion thread: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=439x1604107

the strict interpretation of the constitutional amendment should be moot. To avert a national emergency, sometimes you've got to circumvent congress. And that's exactly what the President should be doing right now.

I'm hoping Obama realizes that he's running out of options, and invokes the 14th right being August 2nd. I highly doubt the people will blame him, and I feel his address to America may have paved the way towards this option, by showing everyone he has exhausted all other options.

I mean, really, even the republicans can't agree to anything now. They're splintering (which makes me lol), but how can anything pass congress, much less the senate?

The people will stand with him. They know what the repukes have done. Sometimes, you just have to stand up and do the right thing. Congress OBVIOUSLY isn't going to do that, so Obama must.

and it failed in the Senate (where it would, again), and the result was, the GOP looked TERRIBLE. And if they try it again, it'll be "oh, there they go again. Is this what we get? Every time there's a Dem in the White House the other guys go for impeachment? GEEZ..." And that would be the framing WE would need to push, AND HARD. "Oh for God's Sake, what IS it with you guys always trying to impeach a Democratic president?"

Plus, right or wrong, what I've observed over a long time about American voters - they like decisive action in a president. They like somebody who takes a stand, and astoundingly enough, it doesn't matter WHAT that stand is! Does anybody remember during the bush years, in 2004, when that asshole went around campaigning with many slogans including: "you may not agree with me, but you know where I stand"? Anybody remember that? That carried a WHOLE LOTTA water with many people. They just wanted the "well, at least he STANDS for something." And for enough of the voters, that was all that counted. They didn't care WHAT he stood for, so much as his forceful declaration about taking a stand. More people seem willing to accept even a bad stand, over wishy-washy.

Doesn't make sense to me (to support somebody simply because he/she takes a firm stand on things - even when that firm stand is a HORRIBLE position), but it appears to be what makes sense to a large block of voters out there.

And remember, when these bastards tried to impeach Clinton and remove him from office - that made his poll numbers go up.

the highest end-of-term approval rating of any President since Dwight D. Eisenhower. HELLO?

Let the repugs try impeachment if they want.

Americans will see it as wasting time, not creating jobs, or doing what's right for America.

The GOP could be made irrelevent, at least into the 2012 elections.

It's not like we're not already about to institute austerity measures on ourselves. Might as well get paid for it.

It's about using power.

At what point in the 21st century has the US government, the executive branch in particular, given a dam about the Constitution?

Unless it suited their needs to wage war or enrich their BFF's, but, I repeat myself.

That simple fucker!

I believe, is render the debt ceiling unconstitutional. If the United States cannot question its debt, how can we have a law that can lead to us defaulting on it? I think that the DoJ should be going after that. There must be something that can be done in the courts...

In what way does the debt ceiling lead to default?

You could just as easily ascribe any looming default to the Bush tax cuts, and then claim that the 14th amendment allows Obama to retroactively impose a surtax on millionaires.

The debt ceiling is by many considered unconstitutional because any law not in furtherance of the literal Constitution is immediately null and void. If there is no debt ceiling, there is no restraint upon the Secretary of the Treasury to sell more U.S. Treasury Notes.

I am not a Constitutional lawyer, but like almost everyone else on this Board, just a person with an opinion.

Welcome to DU! :hi:

and welcome to the DU

true, the second sentence was used in Texas v. White to invalidate bonds that had been issued by Texas (and other states as I recall) during the civil war.

However, the first sentence is an affirmative stand alone obligation. It confers on all parts of United States Government an affirmative duty. If the Congress does not send up a clean bill at this point, and insofar as they are being obstructive of this end individually, they are violating their oath to protect and defend the Constitution.

If the President is left with no other option, it can be argued that he has not only the ability, but the affirmative duty to act in such a manner as to protect the full faith and credit of the United States.

In other words, he doesn't have to "invoke" it -- he has to uphold it

Nothing in this amendment gives the President the power to do anything.

Should they choose to not use that power, intentionally creating a Constitutional crisis that would result in a default, the chief executive is supposed to sit on his thumbs or use the power of the office of the President?

of the Treasury to enact. That is his job. He is just doing his job, and also acting in the capacity in which he has historically acted.

only the Congress has the power to enforce the amendment.

That would be Congress also.

So how many wars are we in? None. Congress hasn't declared any.

Thank you Justice Scalia for clearing that up.

It doesn't say "only Congress". Just "Congress". Nor does it forbid Congress from delegating enforcement to the Treasury.

plain enough language to make that quite clear.

Delegation is not forbidden, therefore it is legal.

There are lots of other areas where Congress was the entity empowered to do something, and their response was to pass legislation so that someone in the Executive branch was assigned the work. Congress's involvement is to supervise.

This is one of those cases.

"I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and I will to the best of my Ability, preserve, protect and defend the Constitution of the United States." You can find this quote in Article. II, Section 1, of the Constitution. Members of Congress take an oath as well to do the same. The President himself was a Constitutional professor of law at the University of Chicago Law School. So whatever decision he makes, after consulting with the legal experts he has already called in, I will support. The problem is of course he probably will be sued by Congress and it is anyone's guess how the Roberts' court will decide.

is clear. Only Congress is granted the authority to enforce the amendment's provisions. I guarantee you that this is what the President's lawyers have already told him, and why he said they advised him against this course of action.

Constitutional Lawyer speaking on the Lawrence O'Donnell show? If not, you might want to check it out.

Sam

I'm simply using the very direct and understandable words of the Constitution for guidance. It is concise and clear in what it says. Only Congress has any power under the 14th amendment. And that is pretty straight forward. Even the President has said that his lawyers have recommended against using the 14th for this purpose. I suspect that they are also able to read the Constitution and understand what limitations exist.

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=439&topic_id=1608934&mesg_id=1610166

That shows a precedent for using the 14th to enforce payment of government debt. That decision is crystal clear.

I pasted it into my poll thread: http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=439&topic_id=1610785&mesg_id=1622367

They are *violating* it.

Section 4 is written in passive voice. "Shall not be questioned". But Congress IS questioning it. More to the point, the Debt Ceiling statute -- should Congress delay indefinitely -- will "question" the debt by it's very nature, if the debt can't be serviced due to lack of funds.

President the authority to act. Only the Congress is empowered to enforce the amendment. And until the Constitution is amended to say something different, he is bound to act within those constraints.

Congress has passed two contradictory laws. The budget says "Spend X". The debt limit says "Don't spend more than Y". Spending X requires spending more than Y.

Enforcing the debt limit is illegal, because you are violating the budget.
Enforcing the budget is illegal, because your are violating the debt limit.

When there has been such a conflict in the past, the Executive branch picked which law to follow until Congress resolved the conflict. In this situation, Congress has to raise the debt limit or issue a new, smaller budget.

If there's no debt ceiling increase, the White House will have to break the law. They will chose which one they want to break.

The Republicans will still go for impeachment.

Wish we had a parliamentary system, I really do. (Bill Clinton would have fallen in 1994, but Prime Minister Gingrich would have been ousted in 1996.)

It puts a Constitutional imperative on all of our government obligating it to not have our debt questioned. Since Congress is not responding to this Constitutional imperative, the President is the only one left to do so.

My thought, do it. Throw it into the Supreme Court and let them hash it out. I'd rather have a Constitutional crisis than an economic meltdown. Besides, given the Court's notorious corporate leanings, my bet is that they'll approve of it.

There is no provision that says it's the president's duty or perogative to do this. The best one could reasonably hope for is that the Court orders the Congress to act on reconciling budget law with debt ceiling law. Which means, back to square one.

Thus, it is exactly within the president's pervue to raise the debt ceiling using the 14th amendment. If Congress doesn't enforce the provisions of the 14th amendment, then it is up to the Executive branch.

As written, the language doesn't actually say what you would like it to say: US credit shall "not be questioned." And Clause 5 uses the word enforcement with respect to Congress. I know what everyone would like to see in this case, but it's not really there. One can make a better case that the Congress has effectively passed two laws that violate each other (the budget and the debt ceiling), so one or the other must be upheld by the president until the lawmakers reconcile the contradiction. Then the 14th amendment could be called on in support, but it clearly does not say that if a combination of factors including Congressional irresponsibility causes an event that Wall Street creditors and ratings agencies announce is a default, then the president has the right to raise the debt ceiling (a concept not found in the Constitution) by executive fiat.

But why the fuck not? It's not like the government isn't pretty much lawless top to bottom by now. Whistleblowers get prosecuted, war criminals walk free and can run for office again, there's an 80 billion dollar shadow world that no one knows what it's doing, the Congress votes both to fund and to reject the same war which keeps going as though nothing happened, the Bush regime invented a fictional "unitary executive" that can act in secret and torture as well as a vice-president who belongs to the legislative branch, the Supreme Court has legalized the maximum possible corporate bribery, the campaign finance system IS a legalized system of bribery, hackers and intellectual property pirates are arrested if they're nobody and protected if they're big corps, the president invokes the right to assassinate a list of American citizens abroad outside combat situations without bothering with arrest or trial, war was declared on an abstraction and serves to justify illegal wars in half a dozen countries, etc. etc. What's the difference, at this point? No?

what Congress is doing. But we just can't take out the parts of the Constitution we like and ignore the rest. It just doesn't work that way.

does and does not grant. There has never been a time in the history of the US that we have been ready to renege on our debt. And the 14th Amendment does say "the validity of the public debt...shall not be questioned". So, someone has to take the tiger by the tail and make sure that we do not default. If that leader who is willing to do it happens to be the president, so be it.

And the Supreme Court found AGAINST the Congress when they tried to get out of paying a government debt:
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=439&topic_id=1608934&mesg_id=1610166

So that specifically means that given a choice between honoring our debts and paying attention to the wishes of Congress, debt payment wins. After all, the debt ceiling is only a law. The 14th Amendment is part of the Constitution which trumps a law.

I believe this is EXACTLY the situation where Obama could invoke powers under the 14th Amendment. And while I am just a lowly government teacher, MANY Constitutionalist experts agree that in this emergency, Obama can and should do this.

Section 4 was included in the 14th Amendment to keep southerners re-joining the Congress after the war from defaulting on debts incurred by the Union during the Civil War. Hence, even in historical context, this is an extremely similar situation.

DUTY, Obama is obligated, as President of the United States of America, to do it for them for THE GOOD OF THE COUNTRY.

Section 4. 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. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

AS PER UCLA Law Professor on the Lawrence O'Donnell show.

law professor is still a misinterpretation. Only Congress my enforce the provisions of this amendment, period. There is nothing to interpret. The wording is crystal clear.

whether Repukes agree or not. They either do their damn job, or BO will do it for them. Their choice!

to impeachment if he did. That is why his lawyers have advised him against this particular course of action. It's not that I wouldn't like to see him be able to end around Congress. But the 14th amendment is not the way to do it.

Regardless, Congress has acted contrary to history of debt extention votes.

to their own voting record. This is an exercise in pure politics.

The argument goes that the Executive Branch must spend the money as the Legislative Branch has dictated.

for that already. Is that what you want?