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U.S. House Speaker John Boehner (R-OH) (L) and Senate Minority Leader Mitch McConnell (R-KY) speak at a news conference about the U.S. debt ceiling crisis at the U.S. Capitol in Washington July 30, 2011. REUTERS/Jonathan Ernst  
Will these men destory the credit of the United States?
The Obama administration does not believe that the 14th Amendment of the U.S. Constitution allows the president to ignore the debt ceiling, White House spokesman Jay Carney said on Thursday. [...] Carney's comments dismissed the possibility that President Barack Obama could have a constitutional option to get around Congress if lawmakers failed to do so. - Reuters
This statement by Carney requires some unpacking, both with regard to legal analysis and political bargaining tactics. First, the legal question.

What are the relevant constitutional and legal provisions? Let's start with the Constitution. Article 1, Section 8 of the Constitution provides:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

[...] To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; [...] [Emphasis supplied.]

Article 1 makes clear that it is the Congress that is empowered to "borrow money" and "pay the debts" of the United States. But of course, it is the Executive Branch, through the Treasury Department, that actually executes these functions. Nonetheless, Article 1 makes clear it is the Congress who is empowered to authorize such actions. But this does not end the Constitutional analysis. In 1868, the 14th Amendment to the Constitution was ratified. While the most famous parts of the amendment are well known (the equal protection and due process clauses of Section 1 of the 14th Amendment), Section 4 of the amendment also provided for a constitutional guarantee of the payment of the debt of the United 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. [...]
Thus, while Congress has the power to borrow and pay the debt of the United States, Section 4 of the 14th Amendment imposes on the entire government of the United States the obligation to pay debt authorized by law. In the 1935 case Perry v. United States (in dicta to be sure), the Supreme Court stated:
The Fourteenth Amendment, in its fourth section, explicitly declares: "The validity of the public debt of the United States, authorized by law, . . . shall not be questioned." While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the Government issued during the Civil War, its language indicates a broader connotation. We regard it as confirmatory of a fundamental principle, which applies as well to the government bonds in question, and to others duly authorized by the Congress, as to those issued before the Amendment was adopted. Nor can we perceive any reason for not considering the expression "the validity of the public debt" as embracing whatever concerns the integrity of the public obligations.
This raises two questions in the current situation regarding the debt ceiling, which was first enacted by the United States Congress  during World War I. The first is this: (1) can the statutory debt ceiling trump the constitutional requirement that US debt be paid? The answer is obvious, no. The constitution is supreme to all legislative enactments. The second question is is the debt ceiling, on its face, unconstitutional? I would argue no because the existence of a debt ceiling does not, in and of itself, put into question the validity of US debt. However, as applied in the current circumstances, the debt ceiling does appear to be unconstitutional (a quasi "as applied" analysis you might say).

So what if anything can the President do about this? First, let's consider what he is obligated to do under the Constitution. Article II defines the powers and responsibilities of the President. Beyond vesting the executive power in the President, Article II expressly provides that the President "shall take care that the laws be faithfully executed."

The President's duty to take care that the laws be faithfully executed applies both to the Constitution and duly enacted legislation of the Congress.

The Congress has enacted legislation that will likely be in conflict shortly—the debt ceiling and appropriations that will cause the United States to exceed the debt ceiling. The spending authorizations postdate the debt ceiling enactment.

What leeway if any, does the President have with regard to choosing what laws to "faithfully execute" here? In the normal course, the President would have a great deal of flexibility when faced with conflicting legislative directives. However, whether the President wishes to respect the debt ceiling is not the deciding question on this discrete point: the President does not have, in normal circumstances the power to borrow on behalf of the United States. The Constitution provides that power to the Congress. Thus, looking solely at this discrete issue, the President does not have the practical power to ignore the debt ceiling because he does not have the power to borrow on behalf of the United States. (But see the platinum coin option, and whether this constitutes a Congressional delegation of the borrowing power (and whether such delegation is constitutional) to the President).

But what of Section 4 of the 14th Amendment? Doesn't the President have a duty to "faithfully execute" its provisions? Indeed he does. And, should the debt ceiling violate the 14th Amendment, it is my view that the President would have the duty to abide by Section 4 of the 14th Amendment, even if that requires violating the debt ceiling. And if that requires borrowing on behalf of the United States, it is my view that Section4 of the 14th Amendment would so empower the President. (Would the President be able to do this in a practical sense? To be discussed below the fold.)

However, such duty would only arise when the validity of US debt is imperiled, to wit, when it is time to make debt service payments. And before the President could invoke this 14th Amendment power, he would have to, at least in my opinion, exhaust other remedies, including NOT "faithfully executing" the spending appropriations enacted by Congress, and instead insuring that US debt is timely serviced. That raises interesting legal questions, but more importantly, it raises interesting political bargaining questions.

I'll explore these and other related issues on the flip.      

President Obama's political strategy is clear—place all of the pressure he can muster on House Republicans to raise the debt ceiling period. No negotiations. Not even an acknowledgment of the constitutional issues. Round up business leaders to urge the debt ceiling not be held hostage.

As part of that strategy, White House spokesman Jay Carney stated there is no constiutional issue with regard to the debt ceiling. Of course that is oatently wrong. It could be that the analysis I present above the fold is not accepted in a court ruling, but there has been no court ruling on the issue to date. At the very least it is an open question.

And practicially speaking, many commnetrs have rightly noted that issuing new debt on the President's 14th Amendment authority would likely be costly, if there is a market at all. It surely is not the first option.

The first option is a rolling government shutdown. (Indeed, this would have to occur in my view before the President could contemplate issuing new debt on his own authority, invoking the 14th Amendment.)

The interesting part of that path is that, in my view, the President will be free to prioritize as he sees fit what parts of the government get shut down first. For example, the President could suspend certain Pentagon projects that Congress wants but that the Pentagon says it does not need.

It also would basically void the sequestration requirements of the budget deal of August 2011 (requirements the President has basically been ignoring, to no protest from anybody). Congress could not protest that the law was not being followed as they failed to permit the issuance of new debt that is necessary to enact their spending appropriation measures.

It's not apparent to me that anyone would have standing to challenge the President's de facto line item veto in such a case. While the Supreme Court has ruled that the line item veto is unconstitutional, I'm not sure how they could get at this scenario. In Clinton v. New York, the Court ruled the City of New York had standing to challenge the Congressional grant of a line item veto:

They invoked the District Court’s jurisdiction under a section entitled “Expedited Review,” which, among other things, expressly authorizes “any individual adversely affected” to bring a constitutional challenge. §692(a)(1).
No such grant of standing is available here. As Lawrence Tribe noted in 2011, there is no "plausible point of entry" for the courts here.  On the legal claim itself, the Court stated:
the presidential actions at issue have amended two Acts of Congress by repealing a portion of each. Statutory repeals must conform with Art. I, INS v. Chadha, 462 U.S. 919, 954, but there is no constitutional authorization for the President to amend or repeal. Under the Presentment Clause, after a bill has passed both Houses, but “before it become[s] a Law,” it must be presented to the President, who “shall sign it” if he approves it, but “return it,” i.e., “veto” it, if he does not.
Obviously, the exigencies the President will have to engage in should there be a debt ceiling forced government shutdown, on its face, violates the Presentment Clause. The question is what does the Constitution require in this case? After all, at that point in this hypothetical, the valdiity of the public debt is probably on shaky ground as well.

Could the President, in an effort to avoid violations of the Presentment Clause and Section 4 of the 14th Amendment, argue that he is constitutionally empowered to issue new debt? I think he could.

But in the meantime, the President would have the discretion to direct available spending as he deems best.

It's not a bad threat for the President to hold over the House Republicans. Consider the outcome of going over the so called fiscal cliff and the debt ceiling cliff (the second is a real crisis)—the Bush tax cuts will have ended, steep cuts in defense spending will be in place, the President having discretion on setting spending priorities with the funds that the government will have on hand. AND, perhaps most importantly, Republican being blamed for the mess. Is that not a Republican nightmare?

The President's negotiating position is extremely strong right now (strong enough to resist stupid concessions like raising the Medicare eligibility age). That said, there is no reason for the President and his people to reject the 14th Amendment option. I would at least be arguing that the debt ceiling as designed may be unconstitutional. That does not weaken the President's position at all. It strengthens it in my view.

And if March 2013 rolls around and there is no resolution of the debt ceiling issue, the President may be forced to act. No reason to take that option off the table.

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Comment Preferences

  •  Why either-or? (5+ / 0-)

    There are many ways to address a debt, including a change of terms.

    Not conceptually different from the oft-raised observation that Social Security can't go bankrupt because we aren't obligated to make the payments:

    Yup. You're absolutely right.  We owe you that.  We'll pay you next month.  Can't get blood from a turnip.

    LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

    by dinotrac on Sun Dec 09, 2012 at 10:04:56 AM PST

    •  That's just incorrect (23+ / 0-)

      Social Security holds US debt that must be honored. That is the guarantee.

      You are propsoing default as honoring the debt.

      That's just absurd.

      •  In some alternative universe (6+ / 0-)

        in which Congress impeached Bush 43, I would've been ROFL had they tacked on an article citing the time he went to the Social Security Administration and called the file cabinets full of records just "a bunch of I.O.U.s."

        Government and laws are the agreement we all make to secure everyone's freedom.

        by Simplify on Sun Dec 09, 2012 at 10:43:08 AM PST

        [ Parent ]

      •  Sorry -- I was referring to Social Security (1+ / 0-)
        Recommended by:
        whaddaya

        benefits, which do not have to be paid at any specific level.

        Just for the sake of comparison.

        And -- again, what guarantees the day a federal debt is paid?
        Seems to me there are lots of circumstances under which the government doesn't pay obligations, or, at least, doesn't pay them under the original terms.

        LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

        by dinotrac on Sun Dec 09, 2012 at 10:50:39 AM PST

        [ Parent ]

        •  That has nothing to do with this post (5+ / 0-)
          •  Why is that? (2+ / 0-)
            Recommended by:
            coffeetalk, FLS

            The debt ceiling effectively throttles the pace at which the government can pay debts, it doesn't eliminate the debts.

            That would seem to have a lot to do with this post.

            LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

            by dinotrac on Sun Dec 09, 2012 at 11:03:49 AM PST

            [ Parent ]

            •  Social Security payments (8+ / 0-)

              are not subect to this issue and will not be unless the US defaults on its debts.

              •  That's my fault for not being more clear. (0+ / 0-)

                I am sorry that I mentioned Social Security.  I was trying to raise an example of altering terms, not necessarily something that is subject to the debt ceiling.

                The original question, if you'll recall, was "why either/or"?

                You seem to present the case as a simple binary matter, when, in fact, it's not.

                LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

                by dinotrac on Sun Dec 09, 2012 at 11:31:35 AM PST

                [ Parent ]

                •  terms of programs (4+ / 0-)
                  Recommended by:
                  Rolfyboy6, ozsea1, vcmvo2, Mary Mike

                  are not equivalent to public debt.

                  In terms of the olegal issue, yes, I discussed the legal issue.

                  In terms of politics, Spocial SEcurity does not contirbute to thenational debt.

                  •  Of course it does. (0+ / 0-)

                    You have to look hard away and avoid natural consequences to believe otherwise.

                    Par for the course here, of course, as that is a natural response for partisan political animals.

                    LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

                    by dinotrac on Sun Dec 09, 2012 at 01:08:49 PM PST

                    [ Parent ]

                    •  Whatever man (0+ / 0-)

                      you and other commenters seem intent of building their own reality.

                      •  I just avoid denial. Your comment on Social (0+ / 0-)

                        Security is patently wrong, but is, of course, completely in line with Democratic Party talking points.

                        LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

                        by dinotrac on Sun Dec 09, 2012 at 01:20:32 PM PST

                        [ Parent ]

                        •  It's not wrong (0+ / 0-)

                          Indeed, it is the law.

                          •  It is wrong, and the law doesn't do anything about (0+ / 0-)

                            it.

                            The Social Security Trust Fund does  not consist of gold or any form of negotiable instrument. It consists of non-negotiable Treasure bills, a debt of the United State.

                            So long as there is a surplus of Social Security payments, all is well.  More money gets paid in, and the pile of government debt grows bigger.

                            Why?
                            Because the money goes into the General Fund, with only non-negotiable government paper actually held in the Trust Fund.

                            And -- you're a smart guy, I don't need to tell you what happens to money in the General Fund: It gets spent.  The baby boom created a sort of giant federal credit card: years and years of surpluses.

                            As we Boomers retire, that surplus is turning into a deficit, those T-bills come due.  As you have so pointedly admitted, they are a debt of the federal government and must get paid.  If there is no increase in revenue to make up for the deficit in Social Security, more debt must be incurred to make up the difference, new revenues must be raised, or Social Security benefits must be cut.

                            There really aren't many choices.

                            LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

                            by dinotrac on Sun Dec 09, 2012 at 05:28:55 PM PST

                            [ Parent ]

                          •  Social Security didn't create that debt. (1+ / 0-)
                            Recommended by:
                            Conservative Socialist

                            Social Security created those huge surpluses that Congress then borrowed and spent.

                            The obligation--debt--is to Social Security. That is, it's to all of us who've paid in (and some others).

                            The notion that Social Security is the problem is a gross distortion; essentially a GOP lie. The debt problem isn't Social Security, it's TO Social Security, because Congress has been spineless for decades, borrowing money that a future Congress would have to provide for repaying.

                            But to suggest that Social Security is the problem is as inane as suggesting China is the cause of our debt problem because they bought our debt instruments, too (which is to say, they loaned us money. So did Social Security). Blaming Social Security is blaming the victim.

                            "Be just and good." John Adams to Thomas Jefferson

                            by ogre on Sun Dec 09, 2012 at 11:10:33 PM PST

                            [ Parent ]

                          •  Tomato-tomahto. (0+ / 0-)

                            The Trust Fund was designed to be a big credit card for legislators.

                            What's inane is pretending that Social Security cannot cause federal debt or deficits. Yes, it requires the complicity of Congress, but -- that's exactly what it was designed to do: let Congress spend money we don't have, transferring the debt to future generations.

                            LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

                            by dinotrac on Mon Dec 10, 2012 at 03:53:45 AM PST

                            [ Parent ]

                          •  Wasn't the SS "trust fund" designed to be a "lock (0+ / 0-)

                            ...box," to reassure recipients that their contributions and the employer match would be there when they retired, and to try to mollify Republicans that SS was not a giveaway program but a sort of savings plan?

                            Is there history of the time that shows - as it was being enacted - sponsors planned it to be a loan office for other spending or, as you call it, a credit card?

                            I grant you that's how legislators (of both parties) have regarded it over time, just as they regard pension plan funding as fungible and available for shorter-term totally unrelated spending.

                            2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

                            by TRPChicago on Mon Dec 10, 2012 at 05:46:00 AM PST

                            [ Parent ]

                          •  The "lock box" was and remains pure PR (0+ / 0-)

                            I don't really blame them for that.  A little creative hyperbole is the norm in politics. And -- other approaches probably weren't much (or any) better.  If the government sits on the cash, it has a negative economic impact because money is taken out of the economy.  If the money goes into non-government securities, there is more risk, although the return (over time -- not in any given five year period) will be higher.

                            But claiming that Social Security can't/doesn't increase the debt/deficit requires a very blinkered view.

                            LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

                            by dinotrac on Mon Dec 10, 2012 at 06:00:38 AM PST

                            [ Parent ]

                          •  Dino, for once, I agree with you! ; -) (1+ / 0-)
                            Recommended by:
                            dinotrac

                            2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

                            by TRPChicago on Mon Dec 10, 2012 at 06:03:21 AM PST

                            [ Parent ]

                          •  It's about damned time!!! ;0) (0+ / 0-)

                            LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

                            by dinotrac on Mon Dec 10, 2012 at 06:38:57 AM PST

                            [ Parent ]

            •  agreed (1+ / 0-)
              Recommended by:
              dinotrac

              All debts will be honored. That 'authorized by law' language is subject to interpretation. It is possible that a court can interpret this as congress ability to regulate the rate of spending. After all congress in other parts of the Constitution is also given controls the to $$$.

              "The validity of the public debt of the United States, authorized by law, . . . shall not be questioned."

              May the Schwartz be with you! http://www.ebaumsworld.com/endofworld.html

              by FLS on Sun Dec 09, 2012 at 01:29:29 PM PST

              [ Parent ]

              •  But the problem wiht 'authorized by law' is that (5+ / 0-)

                Congress has repeatedly and still is authorizing sums to be used for particular purposes well in excess in the aggregate of revenues, most famously during the Reagan and Bush II deficit festivals, and also saying that the expenditures they authorized and which were expended cannot now be paid because of a debt celinig which they most emphatically did not take into account when authorizing the expenditures still unpaid. So in a way, the debt and deficit problem is one created by Congress, and specifically Republican congresses, not the President at all. A conflict of laws created by ideology, and not the President's.

                But I do not notice Rs taking responsibility for this conflict of laws, especially when they send disproportionate not revenue backed expenditures to red states in disproportionate amounts.

              •  "authorized by law" in this context means, (0+ / 0-)

                that Congress authorized spending on a program at whatever level in a budget or continuing resolution.  Once that's done, the spending is authorized, and becomes part of the public debt as it happens.

                (IMO, IANAL)

        •  Treasury securities (5+ / 0-)

          The debt is funded by selling T-bills and bonds, legally binding notes with payment amount and date fixed.

          •  Yes, but with a price that floats at auction. (0+ / 0-)

            That, ultimately, is the biggest limitation on the country's ability to borrow.  If investors start abandoning T-bills, the price goes down, but the obligation stays the same, causing the effective interest to rise.

            I see a lot of trite comments around here about the government's ability just to print up money, but this is where that logic runs into a brick wall:

            Fixed return instruments lose their luster when the value of money goes down, and the value of money goes down as its availability goes up.

            So -- those T-Bills go down and down and down in price in order to attract buyers.

            LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

            by dinotrac on Sun Dec 09, 2012 at 03:00:49 PM PST

            [ Parent ]

            •  So far, this does not appear to be happening. (1+ / 0-)
              Recommended by:
              Nellebracht

              As far as I can tell, the markets are quite happy with the security of buying US Government debt.

              •  In short... (0+ / 0-)

                the markets don't believe GOP bullshit, either. At worst, they think the Republicans will dick with things and in a few weeks, it'll be over. As if it never happened. Theater.

                "Be just and good." John Adams to Thomas Jefferson

                by ogre on Sun Dec 09, 2012 at 11:12:41 PM PST

                [ Parent ]

              •  If the world ends next week, we're ok. (0+ / 0-)

                But things change.

                From the end of the 1970s to the mid 1980s, the US's last great inflationary period, real T-bill interest more than doubled, and that was without the US losing its dominant position in the world economy, as is happening now.

                The US has always enjoyed a sort of "money shelter" advantage -- people have flocked to Treasuries in uncertain times.  Will that continue as China and India rise to make the US just another economy?

                Fun times.

                LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

                by dinotrac on Mon Dec 10, 2012 at 04:10:29 AM PST

                [ Parent ]

      •  You missed the point (2+ / 0-)
        Recommended by:
        Cartoon Peril, ferg

        The debt is rock solid, because the Federal Reserve system can always be ordered to buy it for Federal Reserve notes.  This is called "printing money" and is the reason that the Federal bonds are totally safe.  That's the advantage of being a reserve currency.

        However, Congress could, though it will not, change the Social security payments, for example, cutting all payments in half, cancelling the October payment,etc.  Mind you, I do not expect this to occur, but Social security payments are not Constitutional obligations, unlike the debt that the Social Security system holds.

        We can have change for the better.

        by phillies on Sun Dec 09, 2012 at 10:52:13 AM PST

        [ Parent ]

  •  Well, no. Congress issued the debt, and like (3+ / 0-)
    Recommended by:
    coffeetalk, Seneca Doane, elmo

    any other contract, it was subject to a number of conditions, and the people who bought the bonds evidencing the debt knew of these conditions when they purchased the bonds.

    One of these conditions was that Congress could vote not to pay the debt, by not extending the debt ceiling.  That's not the same thing as refusing to to recognize the validity of the debt.  It's basically saying the debt is valid and we're not going to pay you.

    In other words, highly irresponsible but not unconstitutional.

    You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

    by Cartoon Peril on Sun Dec 09, 2012 at 10:09:42 AM PST

    •  That is absolutely ridiculous (5+ / 0-)

      That is absurd analysis.

      •  Why not? I don't question a debt when I refuse (2+ / 0-)
        Recommended by:
        catfood, Seneca Doane

        to pay it -- this happens in bankruptcy court all the time.  (Hint: not a good model for public policy, however!)

        And in any case, how would the prohibition on not questioning the validity of the U.S. debt translate into an affirmative power for the presidency?  That's got a Dick Cheney ring to it.  Also, see my post downthread about the Steel Seizure Case -- there are limits to any power of the president, and I'm not at all sure there is a power here.

        You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

        by Cartoon Peril on Sun Dec 09, 2012 at 10:28:47 AM PST

        [ Parent ]

        •  Because the it's President who executes the laws, (12+ / 0-)

          the Constitution foremost among them!

          We're getting into "words don't mean what they say" territory here. Not paying the debt is questioning the validity of the debt. That's the whole point of that clause in the 14th Amendment, Congress not welching on debt.

          Government and laws are the agreement we all make to secure everyone's freedom.

          by Simplify on Sun Dec 09, 2012 at 10:33:11 AM PST

          [ Parent ]

        •  Two points (13+ / 0-)

          Your firt argument is simply ridiculous. The United States can not file for bankruptcy.

          Look, usually you make sense oin these discussions but your line of thinking on Section 4 defies belief. That purpose of the provision is to in fact make the payment of public debt a Constituional command.

          That simply is not arguable.

          The second point is the better one - how does the provision translate into giving the President an affirmative power? My argument focuses on the President's mandate to insure that the laws are faithfully executed.  

          Constitutional mandates trump legislative mandates.

          Therefore, the PResident has the power.

          This is not a Steel Seizures situation as, contrary to the GOP view, the Commander in /chief power is not unfettered and the Congress can not require the violation of the Constitution.

        •  I have little idea what "question the debt" means (2+ / 0-)
          Recommended by:
          sebastianguy99, HeyMikey

          in a Constitutional context, so I don't know how I'd resolve it.  I expect that Armando is right about what it meant at the time of its framing and ratification, but that is not a game that I like to play with the Civil War Amendments, because I like the fact that they have, with the sad exception of the Privileges and Immunities Clause, been construed to be much more broad than they were thought to be at the time.

          So I don't see your argument as absurd, to say the least; in fact, the idea that there is a distinction to be made (at least nowadays, and you can ask Mitt Romney about this) between recognizing the validity of a debt and honoring it.

          I like much of Armando's analysis if one accepts his axioms, but I'm not sold on the axioms themselves.  I also agree with coffeetalk below that the White House rejection of the constitutionality of the idea renders it moot (in practice even if not in theory).

          I published [my own odd constitutional analysis a year ago last June, before I decided that the platinum coin idea was good enough to get by, arguing that the 27th amendment (!) explains our way out of the conundrum.  It hinges on the following argument:
          An automotive analogy will helps us consider how the budgeting process allows Congress to rein in spending:

          (1) Congress may bring the government’s momentum to a halt by easing up on the accelerator (not authorizing new spending),

          (2) or it may do so by stepping on the brake (repealing previous authorizations),

          (3) but it is not entitled to slow the growth of government by requiring that the President slam into a brick wall.

          (This is mostly compatible with Armando's analysis except for the "President must try everything else first" part of it.)

          You can't end all spending with a crash and a crunch because then resolution of the crisis would prevent legislators from being paid until after the next intervening election, which was clearly not the purpose of the 27th.  This forces us to view the debt ceiling vote as merely ministerial -- something that the executive can do by itself if the legislature refuses.

          But the platinum coin idea is simpler than this, more elegant, and adequate.

          A platinum coin, which the WaPo article to which Armando links lumps in with rejecting the constitutionality of the debt ceiling as being unlikely but not impossible resolutions, is simpler and more elegant.  Also, contra that article, Jack Balkin did not initiate the idea.  In fact, it would be closer to the mark to say that the idea was initiated -- or at least first most broadly popularized, on a little website called Daily Kos.

          I explained a year ago at the end of July in this diary, where I recognized the genesis of the idea in the work of Koster letsgetitdone and other advocates of Jumbo Coin Seigniorage (later retitled "Platinum Proof Coin Seigniorage, or PPCS); he explains its history in comments there.  While Balkin's mentioning the idea spread its popularity, it first appeared in this website in letsgetitdone's diaries on January 5 and with more force two weeks later, and in larval form elsewhere, as the history offered there suggests.

          Balkin doesn't get the "initiator's right" to abort a given proposition, as he did not conceive it.

          Plaintiffs' Employment Law Attorney (harassment, discrimination, retaliation, whistleblowing, wage & hour, &c.) in North Orange County, CA.

          "I love this goddamn country, and we're going to take it back."
          -- Saul Alinsky

          by Seneca Doane on Sun Dec 09, 2012 at 12:49:53 PM PST

          [ Parent ]

          •  the coin rejects the debt ceiling (0+ / 0-)

            It really relies, in the end, on the !4th Amendment,

            •  I love your legal analysis (0+ / 0-)

              (I love legal analyses generally). However, I don't think the issue is a legal one. I believe it's just politics. The President told the Business Roundtable that he's not willing to play this game again, as he wants to put an end to that particular game. Then he sends Carney out to say that the WH believes the use of the 14th Amendment is unconstitutional. I believe he is signaling that he wants Boehner to make a deal now, and not count on bringing it up again when the vote has to be taken on the debt ceiling. Boehner, et al are trying to gain some traction, and Obama is telling them that they're fresh out, so give it your best shot now. I think he's just narrowing the parameters so Boehner can't paint himself into a corner more easily.

            •  The coin idea doesn't (3+ / 0-)
              Recommended by:
              PeterHug, HeyMikey, Seneca Doane

              reject the debt ceiling law. It avoids it by generating seigniorage profits to pay down the debt. In fact, since the President can avoid the debt ceiling 14th Amendment conflict by using PPCS; it's clear that it's his duty to use either it or another legal expedient that won't breach the debt ceiling. At the end of June 2011, I wrote a post making the argument that the 14th was not unconstitutional, because PPCS existed and that it was the President's duty to use it. However there is at least one other alternative way of getting around the debt ceiling without conflicting with it. Nevertheless, PPCS is till the best way to meet the coming crisis.

              •  That's sopshistry (0+ / 0-)

                It's the President issuing new debt by a willful misreading of the coin statute.

                •  How is this debt? (0+ / 0-)

                  He'd be creating money out of thin air or more correctly, gotten huge sums of money for two measly coins deposited with the Federal Reserve.  It's not much different than what happens on the Federal Reserve's open Market Committee where the FRB of New York monetizes debt obligations by purchasing them.  The key difference is that the coin isn't a debt obligation, it's a tangible asset.  

                  The larger question is would the Federal Reserve agree to such an action as it would possibly  be viewed as inflationary.

                  --United Citizens defeated Citizens United...This time. --

                  by chipoliwog on Mon Dec 10, 2012 at 08:51:43 AM PST

                  [ Parent ]

          •  New history of early stuff on the coin (3+ / 0-)
            Recommended by:
            PeterHug, HeyMikey, Seneca Doane

            Hi Seneca, Here's another piece on the provenance of the coin idea and the history through until August 2, 2011. I know you'll be interested in it. Another coin explosion is going on right now; and, as usual the mainstream bloggers are botching it up

      •  Sorry, it's not absurd (4+ / 0-)
        Recommended by:
        ferg, Cartoon Peril, PeterHug, HeyMikey

        It's legally accurate. I am a retired bond lawyer.

        To say a governmental debt is "valid" is a term of art that is not a synonym for "not in default."

        Valid governmental debt can and has been defaulted upon. The aggrieved bondholder than can sue the issuer and if funds are otherwise legally available, be paid in whole or in part.

        Invalid debt is debt that is issued without fully complying with governing law. A holder of invalid debt is SOL, even if the issuer is flush with cash for payment. Typically, bond purchasers require the opinon of nationally recognized bond counsel that the debt is valid, so in worst case they could always sue the bond lawyers if the debt turns out to be invalid.

        The language in the 14th Amendment about public debt was dealing with a potentially tricky situation. No one wanted to have to pay Confederate debt, but if Congress could repudiate Confederate debt, might it not at some point later on find it similarly convenient to similarly repudiate Union debt? The language in the 14th Amendment calmed everyone down by repudiating that option.

        The U.S. could still default, but then it's bondholders could still sue to enforce payment on their valid bonds.

        •  interesting. thank you (1+ / 0-)
          Recommended by:
          elmo

          With that legal definition, wouldn't bonds issued by the Treasury without Congressional authorization be "invalid" debt?

        •  Sorry it is absurd (0+ / 0-)

          This has nohing to do with bond law aneverything to do with Section 4 of the 14th Amendment.

          Your description of the 14th Amendmentand Section 4 is simply inaccurate. I t had nothoing to do with Confederate debt at all.

          It was not intended to calm peiple down. Itwas intended to do what it didi - nake the payment opublic devt a constitutoonal obligation.

          The analysis presented is utterly absurd.

          •  Um, read the whole section (2+ / 0-)
            Recommended by:
            coffeetalk, HeyMikey
            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.
            "Bond law" just means the body of law that governs public borrowing. Surely you are not going to try to argue that Treasury obligations are not public debt?

            Finally, I'll let someone else take down the rest of this argument. Professor Tribe, someone who knows a thing or two about the Constitution, finds the idea of the so-called 14th Amendment "solution" unpersuasive also:

            http://www.nytimes.com/...

            •  That is (0+ / 0-)

              is interesting, but not really dispositive.

              As I cite to Tribe in my post, their is no entry point for th courts on this.

              To be sure, Tribe does not "take down" anything imo/

              This in particular is rather silly of PRofessor Tribe - "
              The Constitution grants only Congress — not the president — the power “to borrow money on the credit of the United States.” Nothing in the 14th Amendment or in any other constitutional provision suggests that the president may usurp legislative power to prevent a violation of the Constitution."

              I did not take Tribe to be a Scalia style
              "textualist." Because he in;t.

              IT is rtather a silly argument from Tribe frankly.  Not his first.

              You can see some of his writng in support of warratless wiretapping in in 2003 for more examples.

              It happens to the best of them.

              The merits of his argument are lacking on that point.

            •  Also too (0+ / 0-)

              Tribe clearly sees Section 4 of the 14th Amendment  as a Constitutional command to pay US debt, something you seem to disagree with.

              I'll just rely on myself though for the take down. I'll just note with amusement your disagreement with Tribe.

              •  Sorry, I think you are now misreading (1+ / 0-)
                Recommended by:
                CanyonWren

                Prof. Tribe's editorial, as well.

                Tribe clearly sees Section 4 of the 14th Amendment  as a Constitutional command to pay US debt.
                Look, it's really not that complicated. Section 4 bars any Congress from declaring any previously issued U.S. debt invalid (e.g., out of disagreement with a previous Congress' spending decisions). It does not prohibit default, because of course the holder of any valid debt can sue on that obligation to enforce payment. Default is to be avoided for a variety of reasons, of course, but it is not because it would be a violation of this clause.
        •  Granted. (0+ / 0-)

          Argentina is an example of that.

          But what are the risks you pose? I contend that the whole debt hysteria is totally unfounded. Full Faith and Credit is more than legalese. It is founded on the labor of the nation. That is, it's ability to produce  and pay back its debt. In other words, the resources from which to tax. A young family borrowing $150,000 for a new home is not out of whack because they are borrowing three times their yearly income of $50,000. Indeed, they are a good risk, because the wage earner has a steady secure job, and the other spouse uses their income to improve their home.

          The USA is in the same situation. So long as we remain productive, we can borrow as much as three times our GDP, for example, to provide for the future. However, the Rs are creating and riding a fake debt hysteria to threaten to stiff our creditors -- not because we can't pay, but because of their political posturing.

          “I’m able to fly, do what I want, essentially. I guess that’s what freedom is — no limits.” Marybeth Onyeukwu -- Dreamer.

          by chuco35 on Sun Dec 09, 2012 at 01:28:53 PM PST

          [ Parent ]

        •  OK - but could the 14th Amendment (1+ / 0-)
          Recommended by:
          HeyMikey

          be construed to mean that the President has a positive obligation to use every means at his disposal - including minting high-denomination platinum coins - to pay or otherwise discharge that debt before allowing the United States to default on any of the debt?

    •  Ridiculous (4+ / 0-)
      Recommended by:
      Armando, shaharazade, Rolfyboy6, ozsea1

      Ridiculous argumentation, Cartoon Peril. But then it does chime precisely with the conservative mentality which is "we take, you get the shaft."

    •  My understanding (2+ / 0-)
      Recommended by:
      shaharazade, blueoasis

      is that the bonds issued by SS are "special" Treasury notes; the essence is that these bonds have first position on Federal debt repayments,

      Kinda like preferred vs common stock, in case of a private company that liquidates its holdings in a bankruptcy.

      This a very rough and crude way of putting it. I need to get outside to yardwork like an hour ago, but I just can't get away from DK (!)

      BTW, it follows that this is why the plutocracy is fighting so hard to take down SS: through their oil wars and unneeded tax breaks, they have created huge federal obligations that are still subordinate to the SS Treasury bonds.

      They want to skip out on their bills and let SS beneficiaries pick up the tab.

      I say FUCK THAT.

      The "extreme wing" of the Democratic Party is the wing that is hell-bent on protecting the banks and credit card companies. ~ Kos

      by ozsea1 on Sun Dec 09, 2012 at 10:45:23 AM PST

      [ Parent ]

      •  But SS benefits (0+ / 0-)

        aren't paid from the bonds. The benefits are paid by payroll taxes and interest on the bonds.
           In the absence of borrowing authority, it is very likely t
        that there will not be enough cash flow to pay SS benefits.

        •  Not stated or implied in my comment (3+ / 0-)
          Recommended by:
          blueoasis, Odysseus, chipoliwog

          Please re-read.

          When the bonds are redeemed, they have first position. To default is to breach the contract. Plain and simple.

          The assertion that there's not enough "cashflow" is exactly germane to my point.

          this is why the plutocracy is fighting so hard to take down SS: through their oil wars and unneeded tax breaks, they have created huge federal obligations that are still subordinate to the SS Treasury bonds.

          They want to skip out on their bills and let SS beneficiaries pick up the tab.

          This is a feature, not a bug, of the plutocrats's business/legislative model.

          Either you need to re-read, or you're deflecting. I'm trying to be courteous. Please don't test my patience.

          The "extreme wing" of the Democratic Party is the wing that is hell-bent on protecting the banks and credit card companies. ~ Kos

          by ozsea1 on Sun Dec 09, 2012 at 11:57:12 AM PST

          [ Parent ]

      •  Sorry (0+ / 0-)

        I don't think so. I think all treasury obligations are issued pari passu.

  •  Bob Corker, Senator from TN, (22+ / 0-)

    just said a couple hours ago on Fox News Sunday:

    Republicans will probably have to go along with Democrats' demands to let the Bush-era tax cuts expire on the top 2 percent of Americans in a fiscal cliff deal. But in return, Republicans should vow not to raise the debt ceiling unless it is tied to significant cuts to Medicare.

    "Let's face it. [Obama] has the upper hand on taxes and you have to pass something to keep it from happening.  If we were to pass, for instance, raising the top 2 rates and that's it, all of a sudden we do have the leverage of the debt ceiling and we haven't given that up. So the only way the debt ceiling, I think, is given up is if the president comes to the table, talks with Speaker Boehner about real entitlement reform."

    They're not going to give up the idea of the debt ceiling as leverage; the president is going to have to take it away.

    "In this world of sin and sorrow there is always something to be thankful for; as for me, I rejoice that I am not a Republican." - H. L. Mencken

    by SueDe on Sun Dec 09, 2012 at 10:11:54 AM PST

    •  I would say to Corker, (13+ / 0-)

      yes, there will be real reform to the earned benefits programs only from doggedly attacking abuse, fraud and waste, not cutting but adding to benefits. Billions are lost to abuse and fraud. Sting ops have already started and many busted in S FL.

      the president is going to have to take it away.
      YES!
      If leverage is power, then it can only be seized. No one ever just hands over power.

      I ♥ President Obama. ~ Yes, we did. Again.
      NOW: Hands off SocSec, Medicare and Medicaid. NO Grand Bargain.
      Rich pay a bit more. DoD take a bit less. End war on Afghanistan sooner.

      by OleHippieChick on Sun Dec 09, 2012 at 10:31:06 AM PST

      [ Parent ]

    •  And yet the President does not take it away. (1+ / 0-)
      Recommended by:
      ozsea1

      Now why is that? What is he trying to do?

      Dems pull this "we're pretending we don't have power that we actually have" stunt all the time. See also: California Dem leaders refusing to use their newly won supermajority for good.

      Government and laws are the agreement we all make to secure everyone's freedom.

      by Simplify on Sun Dec 09, 2012 at 10:56:38 AM PST

      [ Parent ]

      •  If he tries, they will impeach him (5+ / 0-)

        And it would be an unprecedented expansion of the executive power...after Bush, do we really want to erode checks on the executive branch?

        The president is a constitutional law scholar...he probably knows something about this. And in 2011, he reached out to con law experts for advice about ignoring the debt ceiling, and the verdict was mixed. It was not clear how the Court would rule on it, and in the meantime, the bond market and the economy would be seriously disrupted due to the uncertainty. Lenders may not buy the bonds without knowing if they will be honored.

        •  They will not impeach him (4+ / 0-)

          Congress loves to fork its power and responsibility over to the President. It may be the biggest key failing of our Constitution's checks and balances architecture.

          And if they do, it'll be over some petty personal bullshit. Note that in the '90s the House impeached Clinton over a blowjob, not over Waco or Yugoslavia or any exercise of official power. Almost the same exact House that did that earlier tried to give him the line-item veto!

          Besides, refusing to uphold the Constitution out of fear is just acknowledgement that it's no longer in effect.

          Government and laws are the agreement we all make to secure everyone's freedom.

          by Simplify on Sun Dec 09, 2012 at 11:18:13 AM PST

          [ Parent ]

          •  'xactly--we put the Constitution in the rearview (2+ / 0-)
            Recommended by:
            Simplify, blueoasis

            mirror long ago.

            The only law is power.

            That is, until we demand that the law be the law once again.  Not clear how to do that though with both Republicans and "good Democrats" in the way....

            We kidnap. We torture. It's our policy. Embrace it or end it!

            by Mosquito Pilot on Sun Dec 09, 2012 at 11:58:06 AM PST

            [ Parent ]

            •  NO! The only power - in our democracy - IS the law (0+ / 0-)

              ... as written. Not as Progressives or conservatives wish it would be and know-in-their-hearts-that-it-must-really-be.

              There can, however, be a good faith debate about what the law requires. That's we're dealing with Congressional statutes and there may be even more latitude in applying the Constitution. (Which the Supreme Court has been known to re-interpret upon occasion by simply changing its own mind about what the Constitution means and how it applies.)

              And of course, the Executive does have the option not to abide by the law as written. It simply can choose not to defend Congress's law in the courts. (DOMA anyone?) Or, it can simply defy it and not enforce it, being - after all - the branch that Ninth Grade civics tells us "executes" the law. Congress doesn't like that much and it defies long-standing comity between co-equal branches but it can be done.

              Is it wise? No. It's hazardous precedent. And it may not work in the longer run, producing a bigger failure down the road.

              But most important, a President declaring that he does not believe the Congress's debt ceiling law is constitutional lets Congress off the hook. It is a dare (much bigger than a veto threat.) Congress can hardly refuse to take the dare. It is a court case for the ages. And it will nevertheless put the debt market for US securities - and probably all securities - up for grabs.

              I think President Obama has chosen rightly - for now - not to take this on. This petulant, childish, obstructive, know-nothing, do-nothing-for-government-or-a-Democratic-President GOP-controlled House does not deserve the exercise of a nuclear option.

              Every other option must be tried first. (Except perhaps for that silly super-valuable coin minting proposal. You want a magic trick? That's it! Sorry, Seneca.)

              2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

              by TRPChicago on Sun Dec 09, 2012 at 01:30:48 PM PST

              [ Parent ]

              •  So I take it you've seen our democracy (0+ / 0-)

                That's a relief.  I mostly see a masquerade.

                We kidnap. We torture. It's our policy. Embrace it or end it!

                by Mosquito Pilot on Sun Dec 09, 2012 at 05:03:50 PM PST

                [ Parent ]

                •  Anarchy is better for you? (0+ / 0-)

                  What's the alternative to expecting our leaders to follow the law? Not following it must be the rare exception, musn't it?

                  2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

                  by TRPChicago on Sun Dec 09, 2012 at 05:12:09 PM PST

                  [ Parent ]

                  •  please read my initial comment (0+ / 0-)

                    We kidnap. We torture. It's our policy. Embrace it or end it!

                    by Mosquito Pilot on Mon Dec 10, 2012 at 03:49:01 AM PST

                    [ Parent ]

                    •  I did. You wrote: (0+ / 0-)

                      "The only law is power. That is, until we demand that the law be the law once again."

                      Anarchy isn't power. It's lawlessness and civil disorder - the absence of governmental authority or the refusal to recognize it.

                      You also wrote that "[W]e put the Constitution in the rear view mirror long ago." With due respect, I think that's too sweeping a conclusion. True, Presidents have acted without constitutional authority in the past. Some have been called for it (Truman, in the seizure cases), some have not (Bush and his Congressional gang of liberty thieves on the Patriot Acts).

                      In general, we want and need to be a nation of law-abiders and we have to call our elected officials to account if they are not.

                      2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

                      by TRPChicago on Mon Dec 10, 2012 at 06:01:38 AM PST

                      [ Parent ]

        •  Someone has to be the adult in the room (6+ / 0-)
          ...it would be an unprecedented expansion of the executive power...
          Do we imperil the full faith and credit of the United States government to placate a congress engaged in a domestic power play in order to avoid a constitutional crisis?

          If the congress is proposing to renege on the federal debt - debt which resulted from their own appropriations - who other than the president is left to protect and defend the validity of our currency and the legitimacy of our obligations?

          "In this world of sin and sorrow there is always something to be thankful for; as for me, I rejoice that I am not a Republican." - H. L. Mencken

          by SueDe on Sun Dec 09, 2012 at 11:34:01 AM PST

          [ Parent ]

          •  Amen. After all, Congress went through two ... (1+ / 0-)
            Recommended by:
            SueDe

            ... processes already to compile every bit of the nation's obligations.

            1. Authorization, the substantive means of giving authority to an agency or department to spend the money, and

            2. Appropriation, the procedural means of approving that a check be written.

            Congress enacted a third trip wire - the debt ceiling - in WW I times to promote flagging sales of war bonds. (One issue of which bonds, interestingly, was defaulted upon many years later!)

            Now, being "the adult in the room," may mean some exotic maneuverings, but it'll be nothing like the blunderbuss (in every sense of the word!) of House GOP meddling with spending it authorized. And appropriated. And now wants to ignore.

            2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

            by TRPChicago on Sun Dec 09, 2012 at 01:39:28 PM PST

            [ Parent ]

        •  They want to impeach him anyway. (0+ / 0-)

          IMHO, he should announce that he will continue to operate the government regardless of the debt ceiling because Congress has already ordered the money to be spent. He can invite Congress to overrule him if they disagree.

        •  Thank you for your "concern" (1+ / 0-)
          Recommended by:
          LeftOfYou

          Impeach? Let them try.

          The "extreme wing" of the Democratic Party is the wing that is hell-bent on protecting the banks and credit card companies. ~ Kos

          by ozsea1 on Sun Dec 09, 2012 at 11:59:47 AM PST

          [ Parent ]

        •  The Court doesn't rule on impeachment. (0+ / 0-)

          The House might vote articles of impeachment (anyway). Bets on the Senate actually voting to convict?

          We'd have the spectacle of the GOP impeaching two Democratic presidents in a row, on really silly, political grounds. Bets on how that would play in the press?

          "Be just and good." John Adams to Thomas Jefferson

          by ogre on Sun Dec 09, 2012 at 11:21:26 PM PST

          [ Parent ]

    •  I think that's what he's negotiating w/Boehner (1+ / 0-)
      Recommended by:
      SueDe

      If the debt ceiling were not an issue, the president could probably just draw a flat line no on entitlement cuts and refuse to negotiate over automatically scheduled tax increases, unless it's to get them to extend unemployment, Medicare doc fix, AMT patch, and middle class tax cuts. But I don't think he would give anything on entitlements for that (at least I hope not).

      I think the reason those things are even being discussed is because, as Corker said, they are going to have leverage when the debt ceiling has to be raised, and President Obama knows that. So he believes it's better to make a bigger deal now than have another showdown like the summer of 2011.

      I won't be happy if he gives on the Medicare age, but those who are saying he should just do nothing and let us go over the cliff are a little unrealistic given the debt ceiling problem.

    •  If they really think this is a good strategy (3+ / 0-)
      Recommended by:
      ferg, blueoasis, SueDe

      we're in better shape than I thought.

      I can see how you'd make a case that the entire Bush tax cut package should temporarily stay in place given the weakness of the recovery, but the Republicans have managed to decisively lose even that argument.

      I cannot see how you'd make a case that the debt ceiling should not be raised until Medicare is cut, and, by the way, we're not going to agree to efficiencies or cuts in payments to vendors -- we're only going to consider benefit cuts.

      They're going to lose that argument even more resoundingly than they have the tax cut argument.

    •  Bring the pain (2+ / 0-)
      Recommended by:
      DSPS owl, SueDe

      The Cons keep howling for blood, for pain--will the majority of Medicare and SS recipients who voted for R-Money clean the wax out of their ears and catch on?  I'd like to hear Bama say "My serious, painful cuts and reforms to entitlements are already on the table, almost three quarters of a trillion dollars out of Medicare.  You heard Republicans go on about it all through the campaign.  Surely seniors can't be asked to give more!"  That should be the slogan until Cons give in or concede that those cuts weren't to benefits.

  •  Yeah, I totally agree with the article except... (3+ / 0-)

    I don't like the precedent that this sets. I know that Republicans are being total d-bags about the whole thing, but this feels like a nuclear option, from which there's no going back. It really should be a choice of last resort, since it feels like there's a strong Separation of Powers thing going on.

  •  How far down the road will the debt limit fight (10+ / 0-)

    be pushed if all the Bush cuts expire and the sequesters kick in? That should lower the projected deficit by some (several?) months.

  •  If we're abiding by the law here (7+ / 0-)

    The 14th Amendment means that the government cannot default, end if story. All that stuff about missing debt payments is bullshit. There could be a partial government shutdown, yes, but debt service will be paid no matter what.

    Meanwhile, Congressionally authorized spending passed after the debt ceiling passed, so the spending could be read as superseding and voiding the "debt ceiling."

    And now there's an argument that, because the President can't pick and choose spending, the entire concept of a debt ceiling is unconstitutional from the get-go. (Or, flipping the concept, that the "debt ceiling" requires a full government shutdown on everything except paying existing debts.)

    Government and laws are the agreement we all make to secure everyone's freedom.

    by Simplify on Sun Dec 09, 2012 at 10:22:37 AM PST

  •  This Was Highly Informative: (11+ / 0-)

    and greatly appreciated...

  •  I disagree that the debt ceiling doesn't conflict, (8+ / 0-)

    per se, with Sec 4 of the 14th: It, by its very existence, calls into question the validity of the public debt beyond a certain level, which is analagous to a law saying "Negroes can ride on buses but can't sit up front with the white folks."  If you had applied this same kind of argument to the Jim Crow laws, you would have had to argue that those laws only became unconstitutional when Rosa Parks made her decision to move up front.  No, those laws were unconstitutional before they were tested because they provided for an unconstitutional arrangement to be put in place.

    "Well, yeah, the Constitution is worth it if you succeed." - Nancy Pelosi // Question: "succeed" at what?

    by nailbender on Sun Dec 09, 2012 at 10:25:57 AM PST

  •  If the President gives an oath to enforce the (4+ / 0-)

    Constitution of the US, doesn't he have a check and balance on a Congress that doesn't do their job?  What if he just raises the Debt Ceiling by a Presidential Order, citing the 14th Amendment?

    You can impeach the President.  What power does the President have over a Congress that violates the Constitution?

    Mitt Romney rides off into the sunset in his Audi.

    by captainlaser on Sun Dec 09, 2012 at 10:29:32 AM PST

  •  Aside from presidential or congressional (7+ / 0-)

    political negotiating positions, if the Republicans are really stupid enough to use the debt ceiling as leverage to cut spending in a domestic budget fight, the biggest problem it seems to me would be in how the rest of the world views our debts and their willingness to take the risk of investing in our treasury bonds as long as the political risks in doing so are evident.

    Not only that, but such political threats could - and I suspect certainly would - result in the world financial markets' questioning the legitimacy of the dollar remaining the world's reserve currency

    "In this world of sin and sorrow there is always something to be thankful for; as for me, I rejoice that I am not a Republican." - H. L. Mencken

    by SueDe on Sun Dec 09, 2012 at 10:32:02 AM PST

  •  Just creeping in here quietly to suggest you (2+ / 0-)
    Recommended by:
    Armando, Sylv

    check spelling after the page. Lots of spelling boo boos in the first and second para.

    Otherwise, while a bit over my head, very instructive.

    202-224-3121 to Congress in D.C. USE it! You can tell how big a person is by what it takes to discourage them. "We're not perfect, but they're nuts."--Barney Frank 01/02/2012

    by cany on Sun Dec 09, 2012 at 10:33:28 AM PST

  •  This is, at best, an academic exercise (3+ / 0-)

    If the President ever took this position, it would, of course, trigger a constitutional challenge, with the opposition making legitimate arguments on the other side.  That would have to go to the Courts, ending up at the SCOTUS, where the SCOTUS would have to address not only the issue of standing to challenge the President's actions (depending on who brought the inevitable challenges) but also potentially address the issue of whether the President exceeded his constitutional powers and what the remedy would be.  

    I, for one, am happy that this President -- a former constitutional law professor -- disagrees with you and has ruled out the possibility of putting the country through that extensive constitutional crisis and has ruled out making this argument.  See the transcript of December 6 briefing:  

     

    Q    Okay.  And secondly, can we quickly revisit the debt ceiling question?  You were asked yesterday about whether the President would invoke executive power and the 14th Amendment.  Can you say that --

    MR. CARNEY:  And Peter, with lightning speed, dug up a quote that I thought would take at least a few hours to find.  (Laughter.)  Let me --

    Q    Have you found another one?  (Laughter.)  

    Q    Can you say that the President has ruled that out as an option, or can you say whether there are discussions or studies underway?

    MR. CARNEY:  Let me give you your answer.  I can say that this administration does not believe that the 14th Amendment gives the President the power to ignore the debt ceiling -- period.
     

    •  Interestingly (7+ / 0-)

      The first quote in this post is Carney's statement.

      Typical.

      •  I think it's counter productive to make (2+ / 0-)
        Recommended by:
        VClib, TheKF1

        arguments here that the President has expressly rejected.   Especially when we are at a real pivot point in the country's fiscal future.  

        When it comes time to address the debt ceiling increase (whether that is before or after January 1) things like this will have a host of people who read this site crying for the President to ignore Congress and rely on the 14th Amendment. There are very very good reasons that the President has ruled out taking the position you advocate, not only because he disagrees with you as Jay Carney says (and, frankly, I tend to value the President's view of his constitutional powers more than your view of his constitutional powers) but also presumably he recognizes the real constitutional crisis that would be triggered by doing what you are calling for him to do, and the harm that would do to the country.  

        I have no problem with someone making the arguments you make.  I think they are better reserved for some academic forum, rather than at a site like this, where it may be viewed by some as a call for the President to adopt your position.  

    •  You realize (6+ / 0-)

      Carney's statements are probably pure politics.

      It is currently to Obama's advantage to be touch on the debt ceiling, because the 'pukes came off so badly last time.

      "What could BPossibly go wrong??" -RLMiller "God is just pretend." - eru

      by nosleep4u on Sun Dec 09, 2012 at 10:43:21 AM PST

      [ Parent ]

      •  You and I are responding to a troll (4+ / 0-)

        Yes, I will continue to say so.

        •  Armando, love the diary (1+ / 0-)
          Recommended by:
          VClib

          and the discussion on an exceedingly relevant topic:  How this plays out will have a huge impact on our economy.

          However, as much as you may dislike coffeetalk's views, s)he is not a troll.  In fact I admire coffeetalk for remaining engaged when s)he has little support.

          Anyway, thanks for the diary. This "taking America hostage" shit cannot continue.  Was wondering if there has been any symposium of constitutional scholars discussing this topic?

      •  I disagree with that Carney's statements (1+ / 0-)
        Recommended by:
        VClib

        are "pure politics."

        Words spoken in these briefings are carefully vetted and discussed before the briefing.  Carney could have said, "the President won't put the country through a constitutional crisis when the solution is for Congress to do its job and raise the debt limit."  Instead, he made the unequivocal statement that  "this administration does not believe that the 14th Amendment gives the President the power to ignore the debt ceiling -- period."

        That kind of unequivocal statement was not off the cuff, or designed to reserve any wiggle room.  It was an unequivocal statement of how "this administration" interprets the Constitution, a statement authorized by the President through his press secretary.  I take the President at his word - he doesn't believe that the Constitution gives him the same authority that this diary argues it does.  

    •  So the President can't uphold the Constitution (7+ / 0-)

      because doing so would cause a constitutional crisis.

      Great. In that case, it would be more honest to announce that the Constitution is no longer in effect.

      Government and laws are the agreement we all make to secure everyone's freedom.

      by Simplify on Sun Dec 09, 2012 at 10:48:08 AM PST

      [ Parent ]

      •  It's merely "Aspirational" (3+ / 0-)
        Recommended by:
        jrooth, NM Ward Chair, liberte

        is the argument.

      •  No, the President will not take (1+ / 0-)
        Recommended by:
        VClib

        a view of his own powers under the Constitution that he disagrees with.  

        He's a former constitutional law professor.  He's well aware of what the Constitution says.  He also recognizes the flaws in the argument Armando makes here, which is why Carney didn't just say "we won't take that position," but expressly said that the President does not believe that the 14th Amendment gives him the power to avoid the debt ceiling.  

        Words like that are chosen very carefully.  This is not just a statement that the President wants to avoid a constitutional crisis.  This is a statement that the President believes that the argument Armando makes is constitutionally wrong.  

        People are free to make academic arguments about what the Constitution means and the powers it gives to the different branches of government.  I have no problem with that.  I do think people need to keep in mind that there is another view of what the Constitution does, and does not, allow the President to do.  And the reason the President is not taking the position argued here may well be, as Carney said, that the President disagrees with the position argued here.  

        •  And if Jay Carney says the moon is made of cheese, (3+ / 0-)
          Recommended by:
          Armando, NM Ward Chair, allensl

          you'll dutifully abide by that too.

          Government and laws are the agreement we all make to secure everyone's freedom.

          by Simplify on Sun Dec 09, 2012 at 11:21:18 AM PST

          [ Parent ]

          •  He didnt abide by it (4+ / 0-)

            when Obama said ACA was constitutional.

          •  That was not Jay Carney speaking for himself (1+ / 0-)
            Recommended by:
            VClib

            That was Jay Carney telling the country the President's view of his constitutional authority:  "this administration does not believe that the 14th Amendment gives the President the power to ignore the debt ceiling -- period."

            If Jay Carney had said, "I don't believe" or "I don't think," then you might have more of a point.  But the President does not send his press secretary out to make such an unequivocal statement about the President's position by accident.  When the Press Secretary makes such an unequivocal statement about the President's position -- and the President does nothing to correct it -- I take him at his word  

            •  Then let's change the President's mind (1+ / 0-)
              Recommended by:
              allensl

              Or we could just give up, and in the meantime we could stop bothering to discuss objective reality and instead play within the limits proscribed by our political betters.

              Government and laws are the agreement we all make to secure everyone's freedom.

              by Simplify on Sun Dec 09, 2012 at 11:45:51 AM PST

              [ Parent ]

              •  I don't see those as the two options (2+ / 0-)
                Recommended by:
                ozsea1, DSPS owl

                Frankly, I don't see "change the President's mind" as some kind of realistic option.  He knows constitutional law -- better, than you or I do, and better, I would guess, than a blogger here. He has a number of very smart, very capable people advising him as well.    Clearly he's aware of all the arguments on both sides of this issue.  He's made a studied decision that he disagrees with the constitutional arguments made here.  I don't think "we'll change his mind" is a realistic option.

                "or we could just give up" is not the alternative for the Preisdent.  The alternative is for the President to work within the parameters of the Constitution -- as he understands it, not as a blogger understands it -- and use the power he does have under the Constitution, as well as his political power (which is probably at its peak over the next year or so) to accomplish what he wants to accomplish.

                •  Not necessarily in agreement (0+ / 0-)

                  but tipped for the discussion.

                  The "extreme wing" of the Democratic Party is the wing that is hell-bent on protecting the banks and credit card companies. ~ Kos

                  by ozsea1 on Sun Dec 09, 2012 at 12:20:01 PM PST

                  [ Parent ]

                •  He's not working under the Constitution. (0+ / 0-)

                  He's exercising power, some of it extralegal. And not all to the public's benefit. But hey, if the President does it, it's not illegal.

                  I do in fact think I know better than the President and his best and brightest. I'll defer to superior knowhow when I determine it's warranted, but I'm going to exercise my own independent judgement and speak up about it, as should anyone who takes his or her citizenship seriously.

                  Government and laws are the agreement we all make to secure everyone's freedom.

                  by Simplify on Sun Dec 09, 2012 at 12:23:48 PM PST

                  [ Parent ]

            •  There's a difference between saying (1+ / 0-)
              Recommended by:
              Armando

              it empowers the President to ignore the debt ceiling, and saying that it could, under peculiar circumstances, obligate him to do so. But only if the Congress were to create a situation where they themselves have set laws in conflict in a way that creates a threat to the public good and the validity of the public debt. Which of course, Congress would never let happen, out of a sense of their responsibility and obligation under their own oaths.

              "Be just and good." John Adams to Thomas Jefferson

              by ogre on Sun Dec 09, 2012 at 11:44:31 PM PST

              [ Parent ]

        •  I think that it may be a red herring. (1+ / 0-)
          Recommended by:
          Armando

          Talking one way to lead the GOP (easily led) up the primrose path.

          Because the fundamental argument can be this;

          Congress has passed two sets of laws--one authorizes specific spending; it's approved.

          The other provides funds; it can be seen as the legislative nuts and bolts that fulfills the intention of the first set of laws.

          AND it has passed a bit of legislation that creates a theoretical limit to the debt that the US can take on. This exists -- demonstrably -- as a measure to help reassure bond buyers and bond holders.

          So long as Congress plays responsibly, all this is fine.

          However, they are on the brink of permitting these to--through the irresponsibility of the House--to come into conflict with each other. Intentionally. Willfully.

          And this creates a situation that does cause the debt to come into question.

          Thus the 14th Amendment doesn't empower the president to ignore the debt ceiling. It may obligate him to do so in order to not permit Congress to bring the validity of US debt into question--and to fulfill HIS oath of office, and obligations which include seeing that the law is faithfully carried out.

          If Congress creates a situation, by statute, where the President permits a violation of the Constitution to occur, which he can avoid by ignoring another law--and in doing so, fulfill another law, to the letter... demonstrably in good faith doing what Congress authorized as spending, then it'll be an interesting argument that he's done something heinous.

          Maybe that's just a convoluted way of saying the 14th does "empower" him. But words and phrasings matter in law; does it "empower him" or merely "obligate him"? I think those are different. The Executive might insist that the power comes from the responsibilities of the Executive Branch and the Presidency, and that the 14th merely creates a specific obligation, a responsibility.

          "Be just and good." John Adams to Thomas Jefferson

          by ogre on Sun Dec 09, 2012 at 11:41:50 PM PST

          [ Parent ]

    •  I agree. There 's no power clearly granted here (3+ / 0-)
      Recommended by:
      democrattotheend, coffeetalk, VClib

      to the President.  Maybe a court could order that a debt be paid in the face of a debt-ceiling caused default, but I don't see how the president gets the authority to make that decision.

      In any case, it's hardly good policy to default or threaten default on the debt, and it makes sense for the President to disavow any power to fix any such Republican-caused crisis.

      You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

      by Cartoon Peril on Sun Dec 09, 2012 at 10:53:49 AM PST

      [ Parent ]

    •  Preemptive surrender (0+ / 0-)

      This is bad negotiating tactics on the President's part.

    •  The crisis that would ensue is not one of (8+ / 0-)

      the president exceeding his authority. It would be one of statutes enacted by Congress conflicting with each other.

      The president by choosing which statute controls would be making a constitutional choice. Either could argued on the merits. Which one the president chooses is not one of him choosing to exceed his power, but by making it impossible for him to take care that laws be faithfully executed.

      I think the Supreme Court, were they to take this up, would put the onus on Congress to clear up which law controls. Congress should appropriate within the debt ceiling limit, or provide the adminsitration with clear authority to raise it.

      I agree with Armando that the debt ceiling is not unconstitutional. But the question of can Congress order the president to spend money it does not raise is a good one.

      In my view, the President should take the view that he is obligated to pay the interest on the debt and shut down the government to see that this is done. Armando is correct: once the president can no longer service the obligations of debt with tax reciepts, he is perfectly right to issue debts on his own.

      The Constitution is not a suicide pact.

      •  that's one view of the Constitution (0+ / 0-)

        we won't know in the near future whether it's a correct view of the Constitution because, in our system of government, the Constitution means what the Supreme Court says it means (Marbury v. Madison) and the President, since he disagrees with that view of the Constitution, is not going to take that position and trigger a situation where the SCOTUS rules on it.  

        I tend to share the President's view of the Constitution, frankly, but that's meaningless as well.  What is important is that the one person in a position to trigger a SCOTUS decision on the "correct" view of the Constitution -- the President -- will not be doing that, because he disagrees with the view you and this diary articulate.  

        •  I think you are misreading Armando. (2+ / 0-)
          Recommended by:
          Armando, KiB

          Here's what Armando says:

          What leeway if any, does the President have with regard to choosing what laws to "faithfully execute" here? In the normal course, the President would have a great deal of flexibility when faced with conflicting legislative directives. However, whether the President wishes to respect the debt ceiling is not the deciding question on this discrete point: the President does not have, in normal circumstances the power to borrow on behalf of the United States. The Constitution provides that power to the Congress. Thus, looking solely at this discrete issue, the President does not have the practical power to ignore the debt ceiling because he does not have the power to borrow on behalf of the United States.
          He's clearly stating the Administration's position on a constitutional issue. What Armando is saying is that the administration shouldn't be taking such a position now:
          And if March 2013 rolls around and there is no resolution of the debt ceiling issue, the President may be forced to act. No reason to take that option off the table.
          In other words, should the president keep on his current course and Congress finds itself unable to resolve its own conflicting statutes, he may be forced to decide between defaulting on the public debt (a clear violation of the 14th Amendment) and respecting the debt ceiling (a mere statute that is causing the problem in the first place) or choosing to issue debt based on the 14th Amendment in order to comply with it.

          Given the choice between those two, the Constitution should control. That's all Armando is saying and that reasoning is sound. So therefore, why would the administration prematurely conclude that it would decide to go ahead and violate the 14th Amendment if it comes to that? Or turn the Constitution itself into a kamikaze.

          •  Intentional misreading and dishonesty (0+ / 0-)

            is what that commenter offers.

            As a general rule, the descriptiuon they offer of anything is sure to be incoirrect or willfully wrong.

          •  Depends on whether you are talking (0+ / 0-)

            politically or constitutionally.

            Politically, I agree that the President would be in a better negotiating position if he were able to say, I don't need you on the debt ceiling, I'll do it without you.

            The problem is that any President with principles will not take a position that he thinks is unconstitutional because taking that position gives him a political advantage.  

            I am certain that the President recognizes the political advantage that this position would give him.  However, if he thinks that taking that position would be contrary to the constitution -- as he does, according to the administration's own statement -- taking that position for political purposes would make him completely unprincipled, putting his political  positions ahead of (what he believes) the Constitution requires.  

            And I respect him for not doing that.  

            •  Better to not take a position at all. (1+ / 0-)
              Recommended by:
              Armando

              Which is what I think Armando is saying.

              Because taking the position that he would never violate the debt ceiling statute could put him into the position of violating the Constitution. That is the position the Administration has taken publicly. Why do that? That would cause an unmitigated catastrophe of immense proportions. Constitutional suicide.

              Taking the opposite view, that the 14th Amendment controls, would probably mean America's bonds being rated low and selling at high interest rates. But it presents a much less catastrophic problem in terms of the separation of powers and checks and balances, which would take time to resolve. What it wont do is send the nation into uncharted oblivion.

              The best course, of course, is to not discuss this sort of thing either way, which is why the Administration wants to get this out of the way before year end.

              I don't think not taking a position would imperal the political situation because we are all agreed that the first course of action would be to shut down the government. However, tax reciepts would eventualy fall due to the economic contraction such a shutdown would cause. Eventually, the president would be faced with either paying the debts or not. And in such a situation, he would have to take back his publicly stated postition or watch the nation collapse.

              •  I don't know that he has that option (1+ / 0-)
                Recommended by:
                TheKF1

                Certainly, at some point he has to make it known whether he believes that, constitutionally, he can act unilaterally on the debt ceiling.  Certainly, he has to know the question will be asked.  How is he supposed to answer?  "We haven't made up our minds yet?"

                That would be seen, rightfully so, I think, as subordinating the Constitution (as the President understands it) to his political welfare. It would be seen as "I won't make up my mind on what I think the Constitution says until I see how unreasonable the Republicans are going to be."  

                That is not a position I would respect.  

                I do respect a President following the Constitution (as he sees it) and subordinating his political welfare to the Constitution.    

                •  "We aren't discussing this publicly or privately." (1+ / 0-)
                  Recommended by:
                  ogre

                  You do the national security "sources and methods" shutdown of any discussion about it. You just don't talk about it at all.

                  You seem obvious to the fact that his position by upholding a statute and constricting himself over it would be tantamount to the president throwing up his hands and watching the nation collapse under a default.

                  No president in his right mind is going to do that.

                  If this president lets a debt ceiling statute cause a default and simply throws up his hands then he ought to be impeached and convicted post haste.

                •  And on the question of the option, (0+ / 0-)

                  the president's gotta do what a president's gotta do. The constitution is important and sacrosanct. But it is not a physical property of the universe. It can be violated if need be. It has been done before. Arguably it has been done by this president, and perhaps all of them.

                  No president is going to allow a statue and political gridlock cause a national catastrophe. He will do whatever he has to do and let the chips fall in the courts. If a president doesn't see things that way, he ought not sit in the chair.

                  Once again, the constitution, important as it is, is not a suicide pact. He's not going to go down watching Rome burn saying to himself "good thing I respect limits on presidential power!"

                  •  The logical extension (0+ / 0-)

                    Of saying that a president's gotta do what a president's gotta do is that it can be acceptable for a president to violate the Constitution and not treat it as sacrosanct to prevent a national catastrophe that is more in the realm of national security and terrorism than economics.

                    I am open to the idea that this means Obama should be given more leeway in the areas of drone use and targeted killing that have some on the left a bit squeamish.

                    •  I agree completely. (0+ / 0-)

                      Issuing debts by presidential order is a massive expansion of presidential power. Should it come to that, that is power I would like to see curbed. But no president should let principles of checks and balances prevent him from stopping what would clearly be an unprecedented national emergency.

                      Better to litigate presidential power in courts rather than live under the results of a default.

              •  I think the point is (1+ / 0-)
                Recommended by:
                Armando

                That no one is entitled to violate the mandate of the 14th.

                And Obama could easily be taking the lawyerly view (officially) that of COURSE Congress would not do so. It's not entitled to.  And of course he would not do that--nor violate the law. This is all hypothetical...

                Until it's not.

                When it becomes (if it becomes) not-hypothetical, THEN the cards get played, rather than talked about.

                And he's in a position to say that Congress has violated the 14th by inaction. And has set its own spending bills and the debt limit in conflict, creating a crisis that falls on the Executive--which can only do the best it can, given Congressional irresponsibility.

                In that case, the obligation of the president is to fulfill his own oath in a manner that is as respectful of the Constitution and the law (in that order) as possible, AND which minimizes unavoidable harm to the US.

                Which sets him up to say that he's obligated to ignore the debt limit because IT is in conflict with Congressional spending AND the 14th AND the public good (we really need not to have another economic crash). So long as he's not spending a dime that's not provided for in the budget they passed, he's not violating the House's exclusive rights. He's fulfilling their intentions--at least the ones that seem to make sense, and in a manner that doesn't accept the violation of the 14th's clause. Because that's a Constitutional NO ONE SHALL zone. Off limits to everyone, and he's not going there, and not permitting Congress to go there through inaction and irresponsibility.

                In doing so, he's not claiming authority, per se. More of a responsibility created by the crisis, which falls to the executive, because that's where the buck stops.

                "Be just and good." John Adams to Thomas Jefferson

                by ogre on Sun Dec 09, 2012 at 11:56:10 PM PST

                [ Parent ]

  •  My pessimistic prediction: (2+ / 0-)
    Recommended by:
    Armando, FG

    GOP threatens debt ceiling cliff; Obama gives in.

    It's in both side's nature. The GOP couldn't care less about the effect of their madness; Obama does care about the country and you really can't negotiate with madmen.

    It's why I disagree with analysis that says the GOP is over a barrel. Why? There's no election for two years, the media will blame both sides, the public only cares about the economy at large and Obama and his party will be blamed -- maybe not right away but in the final analysis -- if this all blows up.

    Remember, while basically the public doesn't care about the debt, they HAVE bought into the 'spending hurts the economy' bullshit. And the tenuous link between the ceiling and 'spending.'

    But I guess we'll see soon enough.

  •  Wouldn't the USAG have to sue the House for (1+ / 0-)
    Recommended by:
    Sylv

    violating the 14th Amendment? Take it to the Supremes.

    Involving the 3rd Branch seems at least as valid, if not more valid than creating a new Executive Power in a de facto line item veto.

    It seems curiosity has killed the cat that had my tongue.

    by Murphoney on Sun Dec 09, 2012 at 10:45:46 AM PST

    •  No (5+ / 0-)

      the President does not have to sue anybody.

      Just order the Treasury Secretary to sell debt.

      The question is will here be a market for such debt?

      •  so you believe that extra-Constitutional (0+ / 0-)

        measures -- or questionable ones, at the least -- are preferable to the available recourse of the Court?

        It seems curiosity has killed the cat that had my tongue.

        by Murphoney on Sun Dec 09, 2012 at 10:54:51 AM PST

        [ Parent ]

        •  I don't think it is (2+ / 0-)
          Recommended by:
          NM Ward Chair, vcmvo2

          either extra-Contitutional or questionable.

          •  I don't see where the power for authorization of (0+ / 0-)

            new debt -- if that's the right perspective -- is provided to the Executive Branch.

            If it's meant to be situational, as if the new debt is somehow allowed to the Executive Branch because it's meant to service existing debt, I don't see where that is spelled out and, if not spelled out, how that is relevant.  If it's not situational, I don't know how the power and responsibility is meant to be wrested from the House without the Court -- regardless as to whether the House is fulfilling its Constitutional obligations.

            It seems curiosity has killed the cat that had my tongue.

            by Murphoney on Sun Dec 09, 2012 at 11:04:01 AM PST

            [ Parent ]

        •  What if Congress passed a law (0+ / 0-)

          that the USA had to tithe $1M a day to the Church of the Flying Spaghetti Monster, in direct violation of the 1st Amendment? Would the President have to go to court to get permission to stop the payments... or could he just not pay?

          Government and laws are the agreement we all make to secure everyone's freedom.

          by Simplify on Sun Dec 09, 2012 at 11:08:56 AM PST

          [ Parent ]

          •  He could not pay (1+ / 0-)
            Recommended by:
            NM Ward Chair

            But in most circumstances, the best practice would be to veto such a bill and then, if necessary, sue.

          •  I don't understand signing statements, which would (0+ / 0-)

            be the likely recourse, after a veto (which I assume you're saying was overridden) -- but we're not discussing new legislation.

            So, pretending this is somehow not new legislation, I suppose someone would have to sue.  And I doubt that it would be the President, since Congress would have apportioned a specific expenditure and I don't know that the President would have a way to block it, and perhaps not standing to oppose it (other than rhetorically).

            It seems curiosity has killed the cat that had my tongue.

            by Murphoney on Sun Dec 09, 2012 at 11:16:14 AM PST

            [ Parent ]

  •  WHAT about this LINE you totally ignored?! (1+ / 0-)
    Recommended by:
    shaharazade

    'but all duties, imposts and excises shall be uniform throughout the United States;

    Doesn't this mean that Capital Gains being income must be taxed as Income... among a host of other things it means.

    Proud to be part of the 21st Century Democratic Majority Party of the 3M's.. Multiracial,Multigender and MiddleClass

    by LOrion on Sun Dec 09, 2012 at 10:48:26 AM PST

  •  The easiest way to deal with this (3+ / 0-)
    Recommended by:
    annieli, ferg, jrooth

    might be for the President to ignore the debt ceiling and to let the Republicans sue him. That puts us squarely in the Youngstown framework.

    We can see if a Court of the United States cares to order a default. :/

    Ok, so I read the polls.

    by andgarden on Sun Dec 09, 2012 at 10:49:11 AM PST

    •  And probably issue the damn coin (1+ / 0-)
      Recommended by:
      happymisanthropy

      to at least have an arguably legal basis for doing so.

      Ok, so I read the polls.

      by andgarden on Sun Dec 09, 2012 at 10:50:02 AM PST

      [ Parent ]

      •  The coin thing (4+ / 0-)
        Recommended by:
        andgarden, brooklynbadboy, Garrett, FG

        seems sketchy at best to me.

        •  Absolutely, (0+ / 0-)

          But if we're being a bit formalistic, it might ratchet up the President's position in terms of Jackson's framework.

          Can the President practice "Constitutional avoidance"? :D

          Ok, so I read the polls.

          by andgarden on Sun Dec 09, 2012 at 11:07:20 AM PST

          [ Parent ]

          •  It would be an interesting out (4+ / 0-)
            Recommended by:
            andgarden, vcmvo2, brooklynbadboy, Sylv

            I think Obama  if pushed, would go the coin route instead of theroute I suggest here.

            The main reason is I thnk the Fed would cooperate with him.

            •  I also like the idea of selling off the (0+ / 0-)

              gold supply.

              It would dive the Paulites crazy!

              Ok, so I read the polls.

              by andgarden on Sun Dec 09, 2012 at 11:28:53 AM PST

              [ Parent ]

            •  Wow ... really? (3+ / 0-)
              Recommended by:
              NM Ward Chair, ferg, HeyMikey

              I confess to having been enamored with the coin idea, but mostly out of prospective perverse glee at seeing wingnut heads explode - not because I think it would really be a good thing for our nation.

              But if it does actually come to pass, I think he's do best to mint enough to stave off further debt limit crises until the next president's term, since congress would doubtless act swiftly to close that particular loophole.

              “What’s the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?” - Sherwood Rowland

              by jrooth on Sun Dec 09, 2012 at 11:35:51 AM PST

              [ Parent ]

              •  Balkin has a good argument (3+ / 0-)
                Recommended by:
                jrooth, Simplify, HeyMikey

                as to why he shouldn't issue the coin:

                In fact, if the president ignored the debt ceiling and issued his own bonds, or if he publicly announced that he would mint trillion dollar coins or sell an exploding option to the Federal Reserve, he might lose the high ground in the standoff and actually be politically weakened. First, Republicans would feel no obligation to raise the debt ceiling because Obama would have taken all the pressure off them, and government functions would continue normally. Second, any of these strategies would give Republicans the opportunity to go on the attack. They would insist that Obama was acting illegally, go to court to stop him, and possibly even try to impeach him.

                On the other hand, announcing his position in advance, steadfastly refusing to negotiate with hostage takers and assuring the investment community that all interest on federal obligations will continue to be paid regularly and on time puts Obama in a superior position both legally and politically.

                Because I was involved in the debates about the debt ceiling crisis in 2011, I've been interviewed a couple of times about the debt ceiling recently. The first thing reporters always want to talk about is platinum coins. That's fun to think about--it's a sort of financial science fiction--and the counter-intuitive nature of the idea probably attracts readership. But it is completely beside the point. It's not going to happen.

                Similarly, reporters--and more than a few Democrats--are interested in whether the president can invoke section 4 of the Fourteenth Amendment and raise the debt ceiling himself. Again, this constitutional question is quite interesting as an academic matter, but it's not how a debt ceiling standoff will actually end.  (And Obama's press secretary, Jay Carney, has recently repeated the president's view that he lacks the power unilaterally to raise the debt ceiling or otherwise ignore it).

                Rather, the smart move for Obama is to refuse to negotiate with hostage takers and to insist that he will continue to pay the debts of the United States. This is the correct constitutional course of action, and it also puts him in the strongest position politically as well.

                Mostly in accord with Armando.

                Ok, so I read the polls.

                by andgarden on Sun Dec 09, 2012 at 11:51:37 AM PST

                [ Parent ]

            •  And the coin thing is clearly legal. (0+ / 0-)
  •  There is an interesting corollorary (9+ / 0-)

    Accepting your interpretation of the 14th, and I do, it cuts both ways:

    If Congress can prevent an increase in the debt ceiling then the spending they approve, in the full knowledge that we will need to increase the debt ceiling, could be helf to be unconstitutional.

    In other words, when they approve spending they, by default, also approve any necessary measures needed to make those funds available.

    If that is not the case then they are breaching the constitution when they pass the Bill.

    The obvious conclusion is that they broke the law when they passed the Bill that limits the debt OR they broke the law when they passed spending plans that breach the ceiling.

    Either way it is game-over for the debt ceiling limit.

    The GOP has attorneys and they know this, so it is perfectly open to the President to point this out to Congress and ignore the unconstitutional law.

    It wouldn't be challenged by anyone other than Fox News, because both sides would be happy to see this artificial limit gone.

    I hope that the quality of debate will improve,
    but I fear we will remain Democrats.

    by twigg on Sun Dec 09, 2012 at 10:52:46 AM PST

    •  I agree (8+ / 0-)

      so far, the Obama Administration seems not to agree with us.

      I have no idea why not.

      I mean, they were not hesitant to VIOLATE the Constitution on Libya.

      •  I think it is politics (6+ / 0-)

        The White House may not be everything we would like, but they are smart and resourceful.

        They know full well what the situation is, but voicing it sets up an immediate confrontation with the House.

        Boehner would stand up for the Congress in the face of an authoritarian President, and all the usual suspects, including some on the left would enable him.

        On the other hand, the Administration know this is an artificial battle, and they don't need to give the GOP a platform.

        The ceiling will be increased as it always is, and the posturing will start again next time.

        I hope that the quality of debate will improve,
        but I fear we will remain Democrats.

        by twigg on Sun Dec 09, 2012 at 11:06:55 AM PST

        [ Parent ]

      •  They looked into this option in 2011 (1+ / 0-)
        Recommended by:
        jrooth

        The president reached out to other con law scholars and they were mixed on the legality of it. But the political and economic consequences were significant...lenders might not buy the bonds if it's uncertain that the president won't be stopped by a court from making good on them, and the House Republicans would be almost certain to impeach him if he tried this.

      •  Several reasons (0+ / 0-)

        1)   The GOP is still looking for a bill of impeachment... and just hoping it can get a Senate in 2014 to go along.   A constitutional violation would look good in there, and Obama doesn't want to give them one, or the possibility of one, in advance.

        2)  Doing something drastic is better justified if you previously would have never considered it... but only thought of it when you were left with no option by the other side.   The more you want to use the 14th amendment argument the better it is to say you are not thinking of it...  until you "have been left with no other option by the other side's extreme policies."

        3)  Or, contradicting all of the above, Obama is a concilliator.  He hasn't abandoned his "cave first" instincts.  And maybe he believes that when the debt ceiling limits hit, he'll be able to talk the American people into believing the GOP did it.   Good luck with that.  Of course he's not on the ballot.   But I think he cares about 2014 and 2016 for Democrats.  

        Those are somewhat mutually exclusive possibilities....  but he doesn't have to decide which he is really pursuing.... yet.

      •  Ends justifying means (1+ / 0-)
        Recommended by:
        Armando

        Obama knows the rules so well, he knows exactly how best to break them.

        A guess: Obama wants the Grand Bargain, Constitution and everything else be damned. Or, more literally, be ignored.

        Government and laws are the agreement we all make to secure everyone's freedom.

        by Simplify on Sun Dec 09, 2012 at 11:26:01 AM PST

        [ Parent ]

        •  Adding, Obama already agreed once (0+ / 0-)

          to do the unconstitutional thing: during the last debt ceiling fight, he indicated that if it was not raised, he would have the USA default on its debts, as opposed to shutting down part of the government.

          Government and laws are the agreement we all make to secure everyone's freedom.

          by Simplify on Sun Dec 09, 2012 at 12:34:41 PM PST

          [ Parent ]

    •  To carry that a little further, (4+ / 0-)
      Recommended by:
      twigg, Armando, catfood, Eric Nelson

      if Congress approved spending in excess of the debt ceiling, the President would be obligated to whip out his veto pen.

  •  This is all well and good.... (2+ / 0-)
    Recommended by:
    catfood, DSPS owl

    .....but it is predicated on an assumption that all parties involved will adhere to both the letter and the spirit of the US Constitution.

    As we have seen, with respect to the First Amendment ("Free Speech Zones"), the Fourth Amendment ("Warrant-less Wiretapping"), the Fifth Amendment ("Confessions Extracted via Waterboarding/Sleep Deprivation"), the Sixth and Seventh Amendments ("Guantanamo Military Tribunals") and finally the Eighth Amendment ("Waterboarding/Sleep Deprivation"), adherence to the letter and spirit of the US Constitution is no longer compulsory when the US Government sets its policy.

    Pull yourself up by your Mittstraps: borrow a few million dollars from your parents!

    by xynz on Sun Dec 09, 2012 at 10:59:16 AM PST

    •  The War Declaration power (0+ / 0-)

      President Obama did not give a damn about it when it came to Libya.

      •  So why are you using a Constitutional framework... (0+ / 0-)

        ....as a foundation for analyzing potential outcomes of the debt ceiling power struggle?

        It all comes down to Realpolitik. In this case: the strength of political alliances and the ability to manipulate the Beltway's Conventional "Wisdom". As always, Wall Street's army of K-Street lobbyists will be a major player in shaping that Conventional "Wisdom".

        The Constitution only comes into play, AFTER the policy has been set. That is when the propagandists sell it to the rest of the country by announcing that Their Experts Have Determined That Everything is Constitutional.  

        Pull yourself up by your Mittstraps: borrow a few million dollars from your parents!

        by xynz on Sun Dec 09, 2012 at 11:31:00 AM PST

        [ Parent ]

        •  But it doesn't have to (0+ / 0-)

          With enough public support and elite intellectual acceptance, ideas in the form of laws can limit power.

          Otherwise we'd be better off with an open dictatorship, because at least that would be honest.

          Government and laws are the agreement we all make to secure everyone's freedom.

          by Simplify on Sun Dec 09, 2012 at 12:38:53 PM PST

          [ Parent ]

          •  Well, that's pretty much the point. (0+ / 0-)

            The power of the Constitution peaked in the mid-1970s. The Elites who controlled the US Government believed in it so strongly, that their belief made the Constitution the law of the land. That same belief empowered them to push a sitting President out of office.

            Iran-Contra began a decades long process of undermining the Federal Government's institutional belief in the Constitution. That process went into overdrive during the George W Bush Administration. If the Obama Administration had investigated and prosecuted the Unconstitutional acts of the Bush Administration, then they would have begun to reverse a decades long process that has been reducing the Constitution into little more than a piece of parchment.

            There are pieces of parchment in your wallet that you can use to purchase goods and services. You can do so, because the people who receive those pieces of parchment have complete faith in their value. Without that institutional faith, then those pieces of parchment are worthless.

            Without institutional faith, the Constitution is just another worthless piece of parchment.

            Pull yourself up by your Mittstraps: borrow a few million dollars from your parents!

            by xynz on Sun Dec 09, 2012 at 05:20:38 PM PST

            [ Parent ]

  •  The conflict of laws approach (0+ / 0-)

    would create a Constitutional crisis, one far more serious than the peccadillos of Presidents Nixon or Clinton, or the Steel Seizure.

    Furthermore, it would be a permanent crisis, one that cannot readily be made to go away.

    The suggestion that the Courts lack jurisdiction to resolve the laws is a move to weld shut an escape valve on the crisis.  

    And the secessionists people have been ridiculing would have a new claim, namely that it is the While House that has seceded from the Republic.

    We can have change for the better.

    by phillies on Sun Dec 09, 2012 at 11:00:48 AM PST

    •  I have no idea what (1+ / 0-)
      Recommended by:
      Sylv

      your comment is trying to convey.

      But to the degree that you believe that the Constitution thinks it is ok for Congress to default on US debt, well, you are wrong.

      •  I do not believe (0+ / 0-)

        that there is any indication anywhere that anyone is contemplating that the United States would default on its debt.  The tax revenues of the United States are far larger than the annual interest on the debt, and new bonds can always be sold to the Federal Reserve Banks.  There is no path that creates any short-term likelihood of true default.  If nothing else, we can always print the money needed to cover bonds as they come due.

        Also, I don't think there is anything in my remarks about Congress defaulting on the debt.  Social Security payments are not debt.  The bonds that the SS administration holds are debt, but no one has suggested that they are not valid obligations.  My concern -- which the White House has ruled out -- is the thought that the Executive branch would issue new debt without legislative authority, for example by claiming that an appropriation is legislative authority for issuing debt.

        We can have change for the better.

        by phillies on Sun Dec 09, 2012 at 11:36:46 AM PST

        [ Parent ]

    •  Maybe a Constitutional crisis is desirable (1+ / 0-)
      Recommended by:
      Simplify

      Because the Constitution is fundamentally flawed.

  •  Dangerous long term for Republicans & banksters (6+ / 0-)

    Just like in the late 1870s to 1880s, when the Farmers Alliances were forced to recognize that local organizing of cooperatives alone could not beat back the sustained assault of financiers and bankers, unleashing the grass roots forces that created the populist movement of the 1880s, the combination of the financial crash, with the craven attempt by the rich to reduce their tax burden, has forced American citizens to begin considering the very nature of the financial and monetary systems. It's unfortunate that Armando mentions the platinum coin and links to an article that is so weak and so soft on the idea. Joe Firestone recently offered an outstanding intellectual history of the idea, which includes links to the very first substantial proposal for minting a $1 trillion platinum coin; the intense discussion and debate of platinum coin seigniorage at Warren Mosler's blog;  and what Firestone identifies as "the most comprehensive and rigorous discussion available of the relationship between"  coin seigniorage and inflation, by Scott Wiler.

    From the very first substantial proposal for minting a $1 trillion platinum coin:

    If you think about it, it does seem odd that the US Government is the monopoly supplier of US dollars and yet our politicians go through life thinking the government will run out of money unless it can borrow more.  Of course that’s not true, the coins in your pocket are legal tender and yet were not issued against debt.  They’re minted by the US Government, backed only by the gilt-edged credit of the American people, no one is paid interest on it and they don’t add a penny to the statutory debt.  What’s more, the use of coins as legal tender is scalable, they could replace the use of Tsy debt sales.  No, you wouldn’t have to carry more coins in your pocket.  Nothing would change except Tsy would be credited by the Federal Reserve for the sale of interest-free Treasury coins (presumably of large denominations) instead of interest-bearing Treasury bonds.

    The two great powers of a sovereign state are the monopoly of violence and seigniorage, the profits from the creation of money.  If the federal deficit (that is, expenditures in excess of tax receipts) were funded by seigniorage revenue, not only would there be no debt service owed on the money, there’d actually be no deficit.

    A conservative is a scab for the oligarchy.

    by NBBooks on Sun Dec 09, 2012 at 11:03:05 AM PST

  •  Default on Debt Inevitable? (0+ / 0-)

    I believe default on the national debt is inevitable and it suggests this question to me.

    Question: Does this analysis mean the US could never default on the national debt without a constitutional amendment?

    PBO is doing a competent job, but he needs to be more liberal.

    by jimgilliamv2 on Sun Dec 09, 2012 at 11:04:33 AM PST

  •  Can you explain the Presentment issue again? (1+ / 0-)
    Recommended by:
    Eric Nelson

    I'm not following how that has anything to do with the debt ceiling. Are you talking about some specific bill being Presented?

    Just lost here.

  •  Payments (interest & principal) on US T-Bills, (1+ / 0-)
    Recommended by:
    ferg

    Notes and Bonds would continue to be paid.

    What other obligations of the US Government constitutes "debt"?

    Are payments to a highway contractor for work being done on a curent contract not a debt?

    Are payments to federal employees (whether "eseential" or "nonessential") not a debt?

    Are payments to a utility company for providing electricity not a debt?

    Notice: This Comment © 2012 ROGNM

    by ROGNM on Sun Dec 09, 2012 at 11:08:25 AM PST

    •  I think the narrower reading (1+ / 0-)
      Recommended by:
      NM Ward Chair

      is the correct one for Section 4 of the 14th Amndment purpoises.

    •  that's interesting (1+ / 0-)
      Recommended by:
      Simplify

      But I'd guess most spending would not qualify, because there's enough new spending that could be cut off.

      For example, medicaid would need to pay the bill on a prior surgery, but all new surgeries would be denied.

    •  No. Public Debt has a specific definition (1+ / 0-)
      Recommended by:
      Armando

      and it doesn't include bills.

      •  Do you know (0+ / 0-)

        what the definition was in 1868, when the amendment was passed. I don't. But I don't think it's the same as the definition now. Now it refers to debt-subject-to-the-limit, concept of debt legislatively defined when we entered WWI. I suspect that the 'debt' referred to in the amendment is the concept of 'debt' that was current during the Civil War, and I also suspect that a bit of historical research would be needed to clarify what that was. However, since the Union wasn't very big on issuing debt instruments during that war; it may well be the case that it does include bills, and all manner of other Federal debts too.

  •  Invoking 14th amendment may be hollow victory (2+ / 0-)
    Recommended by:
    ferg, NM Ward Chair

    According to some economist, if Obama invokes the 14th amendment with respect to the debt limit, few investors would purchase our debt for fear that this presidents actions would be subsequently rendered void and any bonds issued would become worthless.

  •  Is skipping other payments default? (1+ / 0-)
    Recommended by:
    ferg

    The debt clock says only about 260 billion is interest on debt. It seems like that is the only thing that has to be paid. The other spending may be a congressionally authorzed obligation but it is not debt. It seems to me that a hardball player would selectively determine who to pay. For instance, make authorized payments to only those state that pay more in taxes than the ones (mostly red) that cost more than they pay. I bet there are a few choice red state military bases that could be selectively targeted for closure as well. It would probably bring the seccesionist fervor to a hard boil but these are the same people threatening to do harm to the US by forcing a default if they don't get their way.

    •  Service of Debt (0+ / 0-)

      I discussed this issue in my post.

    •  It's a cash flow thing. (0+ / 0-)

      Debt has to be paid or rolled over as bonds mature. Also, interest payments don't come due on a regular monthly scheule. And tax revenue comes in rather haphazardly.

    •  The Administration (0+ / 0-)

      would have to pay more than interest. It would also have to pay principal on all the debt that matures. As it pays off debt, and gets under the ceiling, it can roll over debt; but it's a complex balancing act that will be extremely disruptive for Government and the people. One good thing; if things developed that way, I think the Rs would get blamed and that it would destroy their party. As many here know, the Red States rely on Federal spending more than the Blue States. So R politicians in those States will have pay for their stupidity in spades.

  •  asdf (0+ / 0-)

    The Supremes:

    While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the Government issued during the Civil War, its language indicates a broader connotation.
    the desire on whose part?  The bankers' intent was to get paid, Congress's intent was to get the bankers to support the 14th amendment.  Interesting how legislative intent and plutocrat intent seem to be interchangeable.

    It's been a hundred years, isn't it time we stopped blaming Captain Smith for sinking the Titanic?

    by happymisanthropy on Sun Dec 09, 2012 at 11:18:05 AM PST

  •  Thanks (5+ / 0-)

    a very informative and helpful diary that deals with the nuts and bolts of a topic that gets so tangled by both internecine politics and legal interpretations. Helps to to know of other options then the political hostage taking and fear mongering we get from both sides and all branches.  

  •  NPR is not doing well with this issue. Same old (3+ / 0-)
    Recommended by:
    catfood, NM Ward Chair, Simplify

    tired Republican talking points coming through, rather than improved creative proposals on Social Security as that proposed by Sen. Begich for example.

  •  A constitutional crisis is not how (2+ / 0-)
    Recommended by:
    NM Ward Chair, vcmvo2

    the preisdent wants to start off his second term. That's why he doesn't want to go over the cliff and get this settled now.

    That is a wise choice in my view.

  •  Great refresher course (2+ / 0-)
    Recommended by:
    Armando, NM Ward Chair

    And I gained new insight. Thank you Armando.

    48forEastAfrica - Donate to Oxfam this Holiday Season!

    by randallt on Sun Dec 09, 2012 at 11:33:11 AM PST

  •  Congress made the mess Congress should fix it (2+ / 0-)
    Recommended by:
    liberte, Simplify

    The President should declare how he will handle it if Congress fails to raise the debt ceiling and let Congress deal with the fallout.  For example he could list a number of appropriations that will be put on hold and tell Congress if they are not happy with that, well raise the debt ceiling or pass a law ending other appropriations that cover the difference. Forget negotiating with Congress over the debt ceiling.  Otherwise it will become an endless event and will put the full faith and credit of the country under constant question. It has to stop at some point and now is as good a time as any.   The Senate can pass the two sentence law that raises the ceiling and send it over to the House.  Let them stew over that.

    As long as the Tea Party and Boehner think there is something to deal on, they will hold whatever it is hostage. Playing their game is a no win situation.  Time to stop playing.

    The difficulty lies not so much in developing new ideas as in escaping from old ones! - John Maynard Keynes

    by Do Something on Sun Dec 09, 2012 at 11:35:49 AM PST

  •  Two court cases (7+ / 0-)

    have said that the President does not have the power to decline to spend money appropriated by Congress.
      IMHO, following that reasoning, he does not have the discretion to pay some bills and not others. He must pay bills in the order in which they are received. He can't prioritize in advance.
       I think that the President's best course would be to say that there is a conflict between Congress's appropriations and the debt ceiling, and that he will disregard the debt ceiling unless Congress specifically votes to default.

  •  This diary and especially the comments (7+ / 0-)

    have been one hell of an education.

    Thank you to all!  Especially Armando, SueDe, twigg, nailbender, and yes even Cartoon Peril.

    “What’s the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?” - Sherwood Rowland

    by jrooth on Sun Dec 09, 2012 at 11:46:02 AM PST

  •  If the government has an absolute requirement (2+ / 0-)
    Recommended by:
    Gooserock, OleHippieChick

    to repay all its debts, they why would that not apply to monies paid into and interests owed in SS and Medicare?

    Particularly as those trusts have been borrowed from, that really is a debt.

  •  The president can do whatever the hell he wants (2+ / 0-)
    Recommended by:
    NM Ward Chair, Simplify

    Bush said the US Constitution is "just a god damned piece of paper (sic)"--it's hemp--and Obama has done little or nothing to roll back the accretion of executive power under Bush.

    In a nation where habeas corpus is a quaint notion, we are far beyond the rule of law.  All of this budget talk is just more of the politics of fear--the bread and circuses to take our eyes off the real issues--concentration of power, concentration of wealth, concentration of carbon in our atmosphere.

    "The whole aim of practical politics is to keep the populace alarmed -- and hence clamorous to be led to safety -- by menacing it with an endless series of hobgoblins, all of them imaginary."

      --  Henry Louis Mencken

    We kidnap. We torture. It's our policy. Embrace it or end it!

    by Mosquito Pilot on Sun Dec 09, 2012 at 11:50:27 AM PST

  •  Fascinating. It won't look bad, either, that the (3+ / 0-)
    Recommended by:
    Armando, liberte, Eric Nelson

    Pres. is fulfilling a Constitutional duty to faithfully pay the nation's debts...the very pseudo-moniker the Repubs absconded long ago.  

    Republicans...What a nice club...of liars, cheaters, adulterers, exaggerators, hypocrites and ignoramuses. Der Spiegel -6.62, -6.92

    by CanyonWren on Sun Dec 09, 2012 at 11:57:00 AM PST

  •  As far as a negotiating strategy, (1+ / 0-)
    Recommended by:
    Armando

    it might not be a good idea to threaten the use of the 14th Amendment right now. As long as the republicans think that might have a hostage in the future, they might be more amenable to make deals in the short term. I think it would be bad idea to take away that perception for the time being, don't you?

  •  This is very helpful, Armando. (3+ / 0-)
    Recommended by:
    Armando, liberte, Eric Nelson

    I can say I learned something today with your diary!

  •  Right now... (5+ / 0-)

    Right now, the message is: if Republicans in Congress don't act, your taxes will go up in January. That message is clear, and the President and all his surrogates are shouting it from every rooftop through every airwave in every newspaper and in every magazine.

    Come debt ceiling time, the message will be: if Republicans in Congress don't act, your Social Security checks will be delayed, your job with the government will be furloughed, your defense contractors' factories will be shut down. This seems like a better option than ignoring the debt ceiling statute - for which I'm afraid Obama might risk impeachment proceedings - or minting platinum coins or any other accounting trick.

    Call the Repubs' bluff and break their backs with it.

    •  I think you've got it. The White House has (3+ / 0-)

      already said they won't use the fourteenth amendment to go ahead and ignore the debt ceiling statute.  Anything we can think of here about why it might be okay to do it isn't going to be relevant.  President Obama has also said very clearly, to a group of business people, where everyone could see him say it on T.V. that he's not going to play the game again where the R's try to use the debt ceiling in budget negotiations.  Translation:  Republican business people, you better get your people in Congress to behave.  Yes, you tried to do that last time. Try harder.

      Somebody's got to break the back of the mega-rich before they destroy this country.  It might just have to be the merely rich who do it.

  •  If Boehner (2+ / 0-)
    Recommended by:
    TheKF1, HeyMikey

    I think if Boehner were to really try to push the debt ceiling for leverage, the likely outccome this time will be government shut down: Newt Gingrich 2.0. Once this is made clear to him, as I'm sure it is within the context of the current ongoing Pres-Speaker one-on-one talks, I think he will wisely decide that such an outcome would be unworthy of his legacy.

  •  OUTSTANDING DIARY ! (3+ / 0-)

    Thanks for writing that.

    There's another element that this leads into and that is how do treasury markets respond to any of the various scenario permutations?

    The GAO said it cost the US 1.3 billion more than necessary because of the delay of the 2011 debt ceiling vote.  Plus it will cost the US more in the future as treasury debt sold in that period is paid off.

    I'm not liberal. I'm actually just anti-evil, OK? - Elon James White

    by Satya1 on Sun Dec 09, 2012 at 12:23:34 PM PST

  •  It seems like debt ceiling law is unconstitutional (1+ / 0-)
    Recommended by:
    Simplify

    Congress wrote a law that created a 'debt ceiling' thing
    and won't approve their own annual budget deficit unless the President  and the Senate cut spending to their liking upon which they promise to raise the debt ceiling. They can't delegate away their budget writing.  Even with their cuts the Repub budget would still result in an increase in the national debt due to their love of tax cuts.

  •  I draw everyone's attention (0+ / 0-)

    to the important qualifier in the relevant clause of the 14th Amendment:

    ..including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion..
    It is clear that the Amendment refers specifically to debts incurred by the Government in the suppression of insurrection or rebellion, and nothing more. It strains credulity to think that this part of the 14th Amendment could be take to mean that the Congress is forbidden to question other public debt! I agree with the Obama administration. The 14th Amendment would only apply to the debt limit to the extent that it impinged upon suppression of insurrection or rebellion. I know the GOP House comes close, but I think this idea has no legs.

    For if there is a sin against life, it consists perhaps not so much in despairing of life as in hoping for another life and in eluding the implacable grandeur of this life. - Albert Camus

    by Anne Elk on Sun Dec 09, 2012 at 01:07:42 PM PST

    •  That's just false (4+ / 0-)

      and frankly, is an incredible reading.

      inludoing means a part not, not the exclusive part of.

      Also too, the leigslative history.

      Whereo these arguments come from?

    •  That's just not correct on any level. nt (0+ / 0-)
      •  Explain why. The Obama admin and I (0+ / 0-)

        would like to know. The 14th Amendment is clearly addressing the issue of debts accrued by the federal government during the civil war and nothing else. If the Congress is prevented by that clause from ever questioning any debt incurred or proposed to be incurred by the Executive, then how does it actually discharges the duties given it at the very founding of the country? I am no lawyer. I just read text as if it means exactly what it says.

        The solution, if it ever came to it, would be for the Supreme Court to find that the 14th Amendment can only be attributed to the very narrow grounds under which it was written. This point of view would solve both a constitutional and a political conundrum for the SCOTUS, always a pleasant option. Since a majority of the court is always itching to display its original intent credentials, I don't see this going anywhere. And the Administration knows it, I surmise.

        For if there is a sin against life, it consists perhaps not so much in despairing of life as in hoping for another life and in eluding the implacable grandeur of this life. - Albert Camus

        by Anne Elk on Sun Dec 09, 2012 at 02:50:12 PM PST

        [ Parent ]

        •  Because the Supreme Court already resolved it (2+ / 0-)
          Recommended by:
          Eric Nelson, HeyMikey

          in Perry:

          The Fourteenth Amendment, in its fourth section, explicitly declares: "The validity of the public debt of the United States, authorized by law, . . . shall not be questioned." While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the Civil War, its language indicates a broader connotation. We regard it as confirmatory of a fundamental principle which applies as well to the government bonds in question, and to others duly authorized by the Congress, as to those issued before the Amendment was adopted. Nor can we perceive any reason for not considering the expression "the validity of the public debt" as embracing whatever concerns the integrity of the public obligations.

          We conclude that the Joint Resolution of June 5, 1933, insofar as it attempted to override the obligation created by the bond in suit, went beyond the congressional power.

          •  Ahh! I see your point. (1+ / 0-)
            Recommended by:
            brooklynbadboy

            I wonder if the Supreme Court will see the debt limit in the same light. I surmise that the Obama admin is reluctant to find out.

            For if there is a sin against life, it consists perhaps not so much in despairing of life as in hoping for another life and in eluding the implacable grandeur of this life. - Albert Camus

            by Anne Elk on Sun Dec 09, 2012 at 03:42:00 PM PST

            [ Parent ]

  •  If the 14th amendment isn't an option (0+ / 0-)

    We need to go over the cliff, let all the tax cuts expire along with the sequester, then refuse to negotiate unless the debt ceiling is raised.

    first demand the prez be given permanent authority to raise it.

    Second, As a fallback compromise insist that it is raised to insure that it cannot be used again until 2017

    The last resort is to raise it for the remainder of the year.

  •  Debt Ceiling Farce (0+ / 0-)

    The Debt Ceiling is just an accountant's bookmark. We all have them when we look at our checking accounts. We got "Oh shit!" when we see how much we spent at the end of the month. Then we proceed to make good on all our purchases or return some items.

    This debt ceiling is nothing more than a reminder to the Congress that they are exceeding their budgets by a little bit. And that they need to work with the numbers to make everything balance. There is no Cliff, Wall, or other hard boundary to this. It's all hot air! You laid out the Constitutional items very well! Now it's simply up to the Treasure Department to act like your Bank ATM and honor that purchase and bill you for any additional fees since you were bad that month!

    We do need to pay our debts. And Congress is supposed to be the one place that manages the spending. But the Treasury is obligated to honor all debts once it becomes a matter of currency.

    I would challenge Boehner in private that if he "goes there" that you (Obama) would instruct the Treasury to do it's duty to honor the currency debts. Then it would be a battle royale in the SCOTUS. Let the Congress stomp their feet and complain about it. They will look more stupid and Obama will look like the adult in the room once again.

    "I think it's the duty of the comedian to find out where the line is drawn and cross it deliberately." -- George Carlin, Satirical Comic,(1937-2008)

    by Wynter on Sun Dec 09, 2012 at 02:50:13 PM PST

  •  It says clearly "Provide for...the general welfare (0+ / 0-)

    of the United States....to me that means SS benefits, Medicare, Medicaid, Unemployment benefits, Food Stamps, Heating and Housing Assistance, Education, Infrastructure, Safety regulations and so on.....

    And it is not "welfare" in the way that many people look down their nose at, it is welfare as in we are all in this together.....

    I am so sick of the "taxes are stealing" and woe is me cries from the rich and those who think that they are merely the rich in waiting.....

    God Damn it people this is our government and we all pay in taxes and should get help when it is needed.  

    We don't need a military the size of the entire damn world!

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