Thursday, July 28, 2011

Billion-dollar coins and exploding options -- oh my!


Maybe the president can't simply cite the 14th Amendment and raise the debt ceiling, maybe he can -- but does the Constitution provide a paddle? Must he allow the Tea Party to shut down the government as the more mainstream Republicans attempted to do in 1995 during the Clinton administration? 

You remember President Clinton, don't you, the guy that the snickering snarkmongers told us would only serve one term, who would destroy capitalism, plunge us into debt and start fake wars simply to allow him to become a dictator. I'm sure the parallels are coincidental (wink-wink, nudge-nudge).

But Obama, even if if no Clinton ( for better or worse), may still have options, says Jack M. Balkin, Knight Professor of Constitutional Law at Yale Law School. The Constitution has as many loopholes as the Tea Party has loonies, although some of them are as arcane as something out of The Da Vinci Code. There's the Platinum Coin Gambit and the Exploding Option Strategy, for instance.

Even so, all may not be lost for 14th Amendment solution protagonists, like Bill Clinton and a few others, says Balkin:

If the president reasonably believes that the public debt will be put in question for either reason, Section 4 comes into play once again. His predicament is caused by the combination of statutes that authorize and limit what he can do: He must pay appropriated monies, but he may not print new currency and he may not float new debt. If this combination of contradictory commands would cause him to violate Section 4, then he has a constitutional duty to treat at least one of the laws as unconstitutional as applied to the current circumstances.

Balkin likens this dispute to recent attempts to topple the president over his ability to use the military to protect the national interest or in emergencies: 

If the courts won't intervene in the Libya affair, they probably won't intervene here.

But regardless of your opinion on the best way to beat back the barbarians, whichever side you think they're on, Balkin's CNN exclusive interview is great reading and gives a glimmer of hope that the Constitution will do what it was designed to do: protect us.

(Cross-posted from Human Voices.)

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