Remember the proposals that were current back in 2011 to have President Obama invoke his authority under the 14th Amendment to keep funding America’s public debt, even without approval from Congress? Well, that proposal has suddenly become highly relevant again, even urgent.
Prior to 1917, Congress did not even require periodic legislation to increase the debt ceiling. Statutory approval was added as part of the large increase in World War I borrowing.
The 14th Amendment, approved after the Civil War, included several provisions, but the key one for our purposes was Section 45. It provided that: “The validity of the public debt of the United States, authorized by law, including debts incurred for payments of pensions and bounties for services in suppressing insurrection or rebellion….shall not be questioned.” The intent was to make sure that Union war debts would be paid and Confederate ones would not be.
A number of constitutional scholars believe that this provides ample authority for the president to raise the debt ceiling, so that the ability of America to pay its debts “shall not be questioned.”
Before the current debt standoff turned critical, President Obama said he would not resort to the 14th Amendment. When the Republicans blocked the debt ceiling increase back in 2011, former President Clinton urged Obama to take the 14th, but Obama said, ““I have talked to my lawyers [and] they are not persuaded.” Republicans threatened to impeach him if he did.
But that was then. You can just imagine the impeachment proceedings.
Obama and his team of lawyers explain that he invoked this emergency authority to avoid an economic disaster (provoked by the Republicans) far worse than the 2008 economic collapse. The Republicans rail that his action was unconstitutional.
The Republican House votes to impeach, and the Democratic Senate refuses to convict (which takes two-thirds). But guess who wins in the court of public opinion, which turns massively against the circus? The Democrats, after all picked up seats in 1998 after an impeachment whose core issue was presidential sex.
Invoking the 14th Amendment and then daring Republicans to impeach would be a profile in courage. Obama should bring it on. The alternative of a debt default is far worse.