The 14th Amendment – the option that won’t go away
Obama has said no to the nuclear/14th Amendment option – just ignore the debt ceiling. But what if he doesn’t have any choice? It really doesn’t matter if it’s right or wrong but how the SCOTUS would react. Jeffery Rosen takes a look at just that.
The most likely reaction might be to refuse to hear the case deciding that no one had standing. Obama and the country win. But what if they did decide to hear it?
The four liberal Justices would vote with Obama but what about the five conservatives. This is where it gets interesting. The Tea Party Justice, Thomas, would vote against Obama. but what about the other four?
On the other hand, Roberts, Alito, and Scalia, if they remain true to their judicial philosophies, should reject this argument and rule for Obama, not Congress. All three have devoted their careers to defending a broad vision of executive power, and they might even embrace the argument that Obama doesn’t need to rely on the Fourteenth Amendment; instead, he can raise the debt ceiling on his own, by invoking what Eric Posner and Adrian Vermeule have called “his paramount duty to ward off serious threats to the constitutional and economic system.” In addition, the nationalistic instincts of the three pro-executive justices have led them to be consistently sympathetic to business interests, who in this case might support any presidential action that avoids default.
That leaves us with the Libertarian Justice, Kennedy.
Where does that leave the libertarian justice, Anthony Kennedy? He has no hesitation about the idea that courts—by which he means himself—should adjudicate battles between the president and Congress, and although he is all over the map on the issue, he tends to side with Congress rather than the president when forced to choose. This is what happened, at least, in cases involving Bush’s attempt to set up military commissions at Guantanamo without Congressional approval, for example, or in cases involving the Bush Environmental Protection Agency’s refusal to regulate greenhouse gas despite a Congressional law to the contrary. Still, Kennedy views himself as a responsible actor whose duty is to prevent economic and political chaos, as Bush v. Gore showed. In the spirit of caution, let’s chalk him up as a tentative vote for Congress over Obama.
So Obama wins by a 7-2 margin or perhaps even an 8-1 margin. Of course then the real circus begins – the Republican base would insist that the House Republicans impeach Obama. It will go nowhere of course and might be enough to guarantee Obama’s reelection.
12 Responses to “The 14th Amendment – the option that won’t go away”
I disagree Allen; if they decide no one has standing they are doing their job.
RON BEASLEY-
Well in that case, it seems my understanding is lacking.
However it also seems to me that the usefulness of the SCOTUS, to the American people, is considerably less if it refuses to define the meaning of an amendment to the Constitution at a time when that interpretation is critical to the American people.
A government of, by, and, for the people comes to mind.
Wouldn’t the very first thing that would happen is a federal district court judge ordering the executive branch, the Treasury Department, to suspend sales of the debt instruments until the question was decided?
I don’t see Obama doing this. It would be simpler for the Treasury to issue interest only bills for the Fed to purchase, that is the modern version of running the printing press day and night producing money. We will see how happy the Republican supporters are when their wealth starts dropping in real value from the ensuing inflation.
Let’s face facts here, if nothing else we have learned that the Republicans don’t care a bit about the deficit, it is only a way to them to reduce or eliminate social programs and bash the Democrats. They are playing a dangerous game here not only with the nation’s economy but with their hard won reductions in the very wealthy’s taxes. The country will not put up with wholesale spending cuts. The programs that exist are there because they serve a need and are popular. The Republicans got only a small taste of the backlash that can cut their throats this spring with the reaction to the Ryan budget’s Medicare proposals.
For more than thirty years they have sold the idea that most of government spending is waste and inefficiency. When they have to name real budget cuts it will become increasingly obvious to the country that these programs serve real needs and are not waste and inefficiency. When this happens the the only place left to turn to to balance the budget will be to roll back the tax cuts.
This is true. But I don’t think it would be a question of standing. Congress would have standing, it is their law that the executive branch would be ignoring.
Sometimes the Supreme Court refuses to insert itself between the other two branches of the government, but I would be surprised if they would refuse to when the question involves the Constitution so directly.
Ron, the part of the 14th amendment everyone is referring to is about the validity of the debt that is issued; it’s a separate issue and not part of the 14th amendment how much debt may be issued, which is subject to a limit under federal law.
The law limits the debt. That settles it. The liberals who are misconstruing the 14th amendment (apparently largely out of ignorance rather than knowing better and being deliberately dishonest about it) are making fools if not disgraces (if they actually want Obama to violate the law deliberately — an impeachable offense, incidentally; the only defense of Obama against impeachment is that it’s not among “high crimes and misdemeanors”) if they are truly serious about Obama doing it.
Allen — it’s not the proper place of the courts to make the Constitution mean whatever liberals want it to mean, and it’s not the proper place of executive officers or legislators to do what they want and wait for a court to rule on what they are doing later.
DLS
This post was not about how “liberals” misconstrue the 14th Amendment but how the SCOTUS will respond. This was significant:
Roberts, Alito, and Scalia are supporters of an imperial presidency and have a long tradition of looking out for corporate interests.
The Rehnquist and Roberts courts have a history of making the constitution mean what ever conservatives want it to mean so don’t feed me that line of BS.
Obama would be violating federal law (and the Constitution as well as his oath when he was sworn in correctly[!]) were he to ignore the federal law — it’s an impeachable offense (though I don’t believe any impeachment would be treated seriously by the Senate, even if the House did vote to impeach). His only claim in such instance is to say he’s acting like Lincoln, violating laws (and the Constitution) for a truly great and necessary cause (like preventing the Confederate states from seceding). He certainly hasn’t and won’t be Lincolnesque.
DLS
Once again the only thing that matters is how the SCOTUS would respond and that is still what this post is about.
DLS-
That’s NOT what I said, nor Implied.
Not even close.
Well, Ron, that’s true insofar as the final effect as in fait accompli were Obama to act as many on the Left suggest.
Allen, I’ve explained what the 14th does and doesn’t mean as I have done on other threads. It didn’t have to be the same as what you said (or exactly what you said) or implied.
That part of the 14th is about the legitimacy, not the amount, of the debt: Debt that Washington issued (and has since then) are unquestionably valid. (On the other hand, Confederate debt and other claims were invalid.) No question it’s about debt validity.
Here’s the text again.
Even a paramount liberal scholar, Lawrence Tribe, has been at times firmly grounded in reality (as with an individual right to keep and bear arms) when he says about this issue:
That and more (details), here:
http://www.nytimes.com/2011/07/08/opinion/08tribe.html
The issue has been settled (legitimately) as of the very start.