Saturday, October 05, 2013

Debt ceiling crisis options

By Frank Moraes

Yesterday, Adam Liptak wrote an interesting article in theNew York Times, Experts See Potential Ways Out for Obama in Debt Ceiling Maze. It discusses three ideas—two of which you have probably heard before. And the one new one is kind of dumb. Still, I think it is important to discuss them.

But before getting to the specifics, I should note: the White House could not be any clearer that none of these ideas is valid. And I think we should believe them. There are two sides to this. One the front side, they have to say that to put pressure on Congress to use normal order to raise the Debt Ceiling. But on the back side, I'm sure that Obama is concerned that if he does anything that is considered even slightly shady from a Constitutional perspective, the House would almost certainly vote to impeach him. Just the same, I think this is typical cowardly Obama, because the Senate would never have the votes to convict. What's more, the Republicans would end up looking really bad, impeaching two consecutive Democratic presidents over trivial issues that they more or less created. But I think that Obama might change his tune if we are on the verge of default.


The first idea is that the president could claim that it was a state of emergency. In such cases, he has broad authority and could do pretty much as he liked regarding spending. That strikes me as an extremely bad precedent that could eventually lead to a kind of dictatorship where divided government always leads to a state of emergency and a government ruling based upon that. It is very much like Obama's use of spying and drones: some liberals may think it is okay in his hands. (I don't!) But what about in the hands of President Ted Cruz?

The second idea is that the president should use the 14th Amendment, which reads, "The validity of the public debt of the United States... shall not be questioned." Obama could just say, "By the 14th Amendment I am paying the government's bills." This does sound like the best option, but this is the one that the White House has been most specific in dismissing.

The third idea is that the president is screwed regardless of what he does: one way or another, he is going to violate the Constitution. As a result, he should just admit that he will violate the Constitution whether he acts or not, so he should act. Most of the legal scholars think this is a loony idea. Perhaps more important, there is nothing that would set up the Republicans on an impeachment drive than Obama admitting that he was intentionally violating the Constitution. (Although, as I said, I don't see this as necessarily a bad thing from a political standpoint.)

I was most struck by something that Harvard law professor Laurence H. Tribe said. He is supposedly a liberal legal scholar, but I guess like most liberals in America, that doesn't mean much. The article quoted him as saying, "Congressional spending directives to the president contain an implicit condition that, if the money just isn't there to be spent, the president must make tough choices—prioritizing repayment of bondholders who have lent money to our country over those who have been promised payment under various sorts of entitlements, politically painful though that would be." He could be offering this up as an example. But I don't think so. He seems to be saying that this is what Obama should do. The problem is that both bond holders and Social Security recipients have paid money to the government with an expectation of getting paid back. I don't see why Tribe thinks it is clear that the bond holders are more deserving of payment than the retirees.

In the end, if the Republicans force a Debt Ceiling crisis, Obama is either going to have to find a way around it, or he is going to have to default on debt obligations by paying only part of what's owed to everyone. I don't see any reasonable way of distinguishing between one government obligation and another.

(Cross-posted at Frankly Curious.)

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