Obama could cite 14th Amendment powers to tackle debt limit

7:18 PM, Jul 29, 2011   |    comments
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President Barack Obama at a White House news conference, June 29, 2011 (CNN)

WASHINGTON -- President Obama may soon face a very tough executive decision.

If Congress is unable to agree on a plan to raise the nation's $14.3 trillion debt ceiling, Obama will have to decide which government bills to pay and which not to pay - or to simply ignore Congress, pay all the bills and simply raise the debt ceiling on his own.

"I would say it's legally treacherous no matter what he does," said Peter Shane, an Ohio State law professor.

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Obama and his aides say he lacks the constitutional power to raise the debt limit, but that hasn't stopped a rising number of Democratic lawmakers and legal analysts from pushing him to change his mind.

Obama can cite the 14th Amendment of the Constitution, which says "the validity of the public debt ... shall not be questioned," said Rep. James Clyburn, D-S.C.

The president may not even need to do that, some legal analysts say. The prospect of economy emergency, which administration officials say would ensue of there is a government default, gives Obama all the authority he needs to raise the debt ceiling on his own.

"The president has the power during crises to take actions that are necessary to protect the country," said Eric Posner, a law professor the University of Chicago.

Posner and Adrian Vermeule, a law professor at Harvard, co-authored a New York Times op-ed that reached back to another difficult economic moment, the Great Depression.

In his inaugural address of 1933, President Franklin Roosevelt said, "It may be that an unprecedented demand and need for undelayed action may call for temporary departure from that normal balance of public procedure."

Posner and Vermeule wrote that, in the current case, "the president would derive authority from his paramount duty to ward off serious threats to the constitutional and economic system."

Other presidents have also decided to go it alone when faced with a potential crisis.

Harry Truman, faced with a potential steel workers strike in 1952, ordered a government seizure of the steel mills, saying a strike created risks for U.S. troops then fighting in Korea.

Obama has questioned his ability to raise the debt ceiling on his own.

In response to a questioner at a town hall meeting, he said his lawyers "are not persuaded that that is a winning argument."

Section 4 of the 14th Amendment was specifically written to cover the public debts of the Civil War.

Ratified in 1868, shortly after the Civil War, part of Section 4 of the 14th Amendment states: "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."

A 1935 Supreme Court opinion authored by Chief Justice Charles Hughes broadened its meaning, saying that the language of the Amendment had a broader meaning.

Shane, who specializes in separation of powers at Ohio State, echoed other legal analysts in saying that clause only obligates Congress to fund the repayment of federal debts, a key issue after the Civil War.

While Clyburn and other Democrats are urging Obama to cite the 14th Amendment, some Republicans have objected.

If Obama raised the debt ceiling on his own, "he would effectively be a dictator," Rep. Michele Bachmann R-Minn., a presidential candidate, said on CNN.

Rep. Tim Scott, R-S.C., said unilateral action could be grounds for impeachment. Rep. Steve King, R-Iowa, also suggested impeachment proceedings against President Obama, should he use the 14th Amendment.

11Alive's Bill Liss, a lawyer himself, points out that the use of the 14th Amendment would be a novel approach for the provision, written more than 140 years ago. In his estimation, if the president invokes the Amendment, watch the Supreme Court - their opinion would become key in any proceeding.

(USA Today contributed to this article.)

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