What's The Worst That Could Happen? ctd...

July 6th, 2011

As the Republicans continue to hold our nation's creditworthiness hostage to their ageneda, an increasing number of observers are advocating the "14th Amendment solution." Among them, Katrina Vanden Heuvel who wrote for WaPo:

"President Obama may find that there is only one course left to avoid a global economic calamity: Invoke Section 4 of the 14th Amendment, which says that “the validity of the public debt of the United States … shall not be questioned.” This constitutional option is one that the president alone may exercise.

If the Aug. 2 deadline arrives and no deal has been made, Obama could use a plain reading of that text to conclude — statutory debt ceiling or not — that he is constitutionally required to order the Treasury to continue paying America’s bills. In that sense, this is not just a constitutional option, it is a constitutional obligation, one even the Tea Party will have trouble denying.

There are reasons why such a solution is less than ideal. There ought to be some concern about executive overreach; the very idea of the president deciding which laws are and are not constitutional has disturbing ramifications. And to the extent that the goal of the move is to prevent market panic, it remains an open question as to whether it would succeed. But market panic will surely come with the failure to reach a deal altogether. The consequences of default are simply too severe — and too long-lasting — to take this option off the table. It may not be ideal as an elective choice, but as an option of last resort, it is a necessity.

If Obama does choose to move forward, he will be doing so on strong legal footing. InFreytag v. Commissioner (1911), the Supreme Court held that the president has “the power to veto encroaching laws . . . or to disregard them when they are unconstitutional.” The final word still may lie with the Supreme Court, but in the interim, the president need not wait for its opinion."

Michael McConnell of the Hoover Institute disagrees. His arguments are worth reading. Although they are poorly constructed, they are likely those which the Republicans will parrot if this option starts to look more probable.