Okay, I admit it-I am itching for the President to claim that there has been suddenly discovered in the Fourteenth Amendment a right for him to do an end run around Congress and raise the debt ceiling unilaterally. In my opinion, it would be a fatal overreach. It would be the biggest executive power grab since FDR tried to pack the Supreme Court.
Stephen Moore has a good analysis of what it means and what could happen:
What the 14th Amendment language exactly means in terms of honoring Uncle Sam’s debt obligations is a subject of controversy. Republican Sen. Pat Toomey of Pennsylvania believes that it means the government can’t default on its debt and that bondholders have to be paid first. Heritage Foundation legal scholar Andrew Grossman argues that “unilateral action by the president to borrow money would be an unconstitutional usurpation of the legislative power” and that “the president lacks the authority to, on his own accord, make expenditures which have not been authorized by Congress . . . or to undertake borrowing that has not been authorized by Congress.”
But longtime budget guru Stan Collender says that many Democrats disagree and think they have found an escape hatch. According to Mr. Collender, Democrats hope that “the 14th Amendment supersedes any legislative [debt] limits.” If this is correct, he adds, “The White House will have a self-executing way around the debt-ceiling impasse.”
What happens if Mr. Obama invokes the 14th Amendment and congressional Republicans object to this White House power grab? One option is for Congress to sue in court. Another possibility would be impeachment proceedings if Congress believes that Mr. Obama has not faithfully executed the laws of the U.S.
But all of this ignores the political expediency of allowing the president to unilaterally raise the debt ceiling. The reality is that the 14th Amendment option would let both parties off the hook. As one House leadership aide in on the budget negotiations tells me, “you have to understand [that] nobody wants to vote to raise the debt ceiling.” Both parties might be so deadlocked that they may choose to let Mr. Obama raise the debt ceiling on his own. That way, no one in Congress has to take the blame.
Well, there you have congressional courage in a nutshell! The Democrats would have to do some fancy footwork to convince voters that this is right-and, if it turns out that they are (I don’t believe it for a minute), then the power of the presidency just increased enormously.
This strikes me as just the latest example of the habit of discovering in the Constitution some heretofore hidden justification for doing what you damned well please. If the right were there all along for the president, do you think it would be something that liberal lawyers have just conveniently discovered?
Like I said, though, I hope they try. The Obama presidency has created a crisis with regard to solvency and executive power–from the halls of Montezuma to the shores of Tripoli (and in the corridors of Congress). We’d better hope that the GOP isn’t too craven to win this one.