October 9, 2013

Obama rejects call to use 14th Amendment to fix debt fight

The idea has been pushed by some scholars who argue that a default on the country’s debt violates the Constitution.

Bloomberg News

(Continued from page 1)

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President Barack Obama speaks about the budget and the partial government shutdown, Tuesday, Oct. 8, 2013, in the Brady Press Room of the White House in Washington. Amid a deadlocked Congress and shutdown government, Obama poured cold water Wednesday on calls to invoke the Constitution’s 14th Amendment to skirt congressional approval for issuing new debt,

AP Photo/Pablo Martinez Monsivais

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Obama would probably face impeachment charges, Balkin said. Government bond sales would also likely be challenged in court by allies of the Republicans who could buy the new bonds to give them standing to file a lawsuit, he said.

“If Obama is impeached, then the issue will shift from the constitutionality of what the House has done to the legality of what Obama has done,” Balkin said. “He will lose the higher ground in the debate, and the country’s focus will be taken over by an impeachment trial for months, as the economy spirals ever downward.”

Eric Posner, a law professor at the University of Chicago, said the argument that Obama could use emergency powers if a default triggers a national economic crisis is a political question, and not a legal one.

“If there were actually a crisis, if markets collapsed and there was an extensive crisis, and Congress didn’t do anything, the president could certainly claim the power to do what’s necessary to address the crisis,” Posner said in an interview.

The question, he said, is whether the public would accept such an exercise of power. “It would be very risky,” Posner said.

Among lawyers studying the president’s options is a third view, which argues that without a deal, Obama will be left to choose among multiple unconstitutional options: unilaterally raising taxes, unilaterally cutting spending or ignoring the debt ceiling with the issue of new bonds.

Neil Buchanan, a law professor at George Washington University, and Michael Dorf of Cornell University, call this scenario a “trilemma” and advise that the president take the “least unconstitutional” course – that of issuing bonds.

“He’s going to be stuck making a choice choosing among three bad options due to Republican intransigence,” Buchanan said in an interview. “The Obama people are committed to not blinking. If Republicans don’t blink either, then the last mover in this drama is the president. He can float some bonds or default on the obligations, but he’s the one who has to make that tragic choice.”

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