Although I still think the Debt Limit is explicitly unconstitutional according to the 14th Amendment, it's quite clear that Pres. Obama's legal team has concluded otherwise.
"This administration does not believe that the 14th Amendment gives the president the power to ignore the debt ceiling -- period," Carney said.
Perhaps the most recent Supreme Court ruling for Obamacare is what's giving them second thoughts in taking anything before them as there are four justices ready and willing to throw the kitchen sink at Obama for just about anything, regardless of the legal precedent that has existed over the last two centuries. That the fifth judge unexpectedly bailed on the four conservatives for being "too radical" was something of a lucky break and it may be that John Roberts now feels he doesn't owe anything anymore to the Obama administration after doing him (and 30 million uninsured Americans) a solid.
The 14th Amendment states:
"The validity of the public debt of the United States of America, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned."
The fear seems to be that there's no telling what the conservative justices would interpret as the appropriate response to the public debt suddenly being questioned. Perhaps they conclude that the government must stick to the debt ceiling regardless and immediately "live within its means," granting every teabagger their wet dream and forcing the government to immediately cut down 40% of its current size. Despite the chaos that decision would lead to, I would certainly not doubt that they would be capable of coming away with that interpretation.
However, I think there's a simpler way to argue that the debt limit is unconstitutional without relying on the 14th Amendment and with perhaps minimizing the conservative justices' options for fucking around with the size of government. Namely, that when Congress has sent the Executive branch two conflicting statutory laws, the more recently passed statutory law has precedence.
The Budget Control Act of 2011 was signed into law on August 2nd, 2011 and established $16.394 trillion as the current debt limit.
The last appropriately passed budget was in 2009 but the government has been funded since then through Continuing Resolutions. The most recent continuing resolution was signed on September 28, 2012 to keep the government funded through March 27, 2013.
However, we officially hit the debt limit on December 31st, 2012 but due to the extraordinary measures of the Treasury Department, we should be ok until sometime in February or March.
So how can the Executive branch deal with a law that says it can only borrow $16.394 trillion but be given another law from the same Congress that mandates funding via deficit spending to keep the government funded through March 2013?
These two laws are in conflict, which could allow Pres. Obama to argue that the more recent Continuing Resolution has precedence over the older Budget Control Act of 2011 and that Congress has given implied consent to raise the debt ceiling to cover the expected shortfall.
There is no "surrender of Congressional oversight or power of the purse" as conservatives would explain it to you, they just implicitly give it every time they pass any bill that requires deficit spending over and above the previously established debt limit.
Actually, there's precedence for this in the Gephardt Rule that established in 1979 that the debt ceiling was automatically raised to the level projected by the budget. This rule allowed Reagan to Bush Sr. to have a combined total of 22 debt ceiling increases during their terms in office without any problems from Democratic Congresses.
And because everything shitty always has a connection to Gingrich Republicans, the Gephardt rule was waived in 1995 so they could provoke two government shut downs with Pres. Clinton, which is how we're back in this mess again with the current Teabaggers.
There is no logical behind the debt ceiling statute as anytime Congress passes funding that requires more deficit spending over the limit, they're implicitly authorizing the raising of the debt ceiling. Otherwise, there's a conflict in statutes and the more recently passed funding wins out.
It's time to call Republicans on this bullshit and permanently disarm this economic nuclear weapon!
PS. If Pres. Obama does decide to go with the Platinum Coin option instead, I think he should put a picture of John Boehner on one side of it with a teabag on the other.