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There's a whole other option I haven't seen discussed that can provide a way out of this mess. One that involves both the 3rd branch of government, and We the People. And that is:


The Fourteenth Amendment says:

"The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned."

If, indeed, the debt ceiling is possibly unconstitutional under the Fourteenth Amendment, as many have recently supposed, then we do NOT need to wait for some government official to say so. Any federal court in the United States has the power to enjoin the enforcement of an unconstitutional law. And any citizen who will be harmed by the failure of Congress to raise the debt ceiling (and this is everyone in the country, maybe in the world, but especially recipients of Social Security payments, veteran's benfeits, Medicare payments, government employees to whom pay is due, and holders of U.S. Savings Bonds) can go out tomorrow and FILE A LAWSUIT in their nearest United States Federal Court seeking an EMERGENCY PRELIMINARY INJUNCTION against the enforcement of this unconstitutional law. If a hundred lawsuits are filed in a hundred courts, then it only takes ONE judge of all of those lawsuits to decide that the case has sufficient merit to issue a preliminary injunction against the operation of the law.

A few notes (based on convo with a far more knowledgeable friend):

Standing: It may not be clear who has legal standing to bring the suit, but if many people with a wide variety of claims file lawsuits, it is much more likely that some courts will find some of them to have standing.

Defendant to be sued: It also may not be clear who the suit should be filed against, so the best bet is to sue everybody, including the United States as a named party, but also name the President, the United States Department of the Treasury, the Federal Reserve, and Congress. If there are more potential defendants that I'm not thinking if, sue them too. The worst that can happen is those defendants will be thrown out of the lawsuit.

Court to sue in: Lawsuits should be filed in as many courts as possible, but at least several should also be filed in the U.S. Court of Federal Claims, which deals with "takings" (where the government takes property, and the injured parties are entitled to due compensation under the Fifteenth Amendment), as that may ultimately be decided to be the "proper" court. There may be less chance to find a state court that will consider the case, but then again, it couldn't hurt to file a few suits in state courts.

Also important: When filing a lawsuit on this ground it is important to tell the Court in the complaint that you have standing because you will be injured by the statute, to state specifically what loss you personally will be facing (social security, veterans benefits, your government paycheck, the ability to redeem your bonds) and to specify the statute (it's been suggested to me that it is likely the Second Liberty Bond Act of 1917, P.L. 65-43, 40 Stat. 288, enacted September 24, 1917, Currently codified as amended as 31 U.S.C. § 3101; or the Public Debt Acts of 1941 (P.L. 77-7), 1942 (P.L. 77-510), 1943 (78-34), 1944 (P.L. 78-333), and 1945 (P.L. 79-48). To be sure, just list them all.

No need to take this lying down. The citizens can get involved immediately if they choose, and ANY injunction by the court would instantly lift the burden from the President and Democrats to agree to any draconian, nation-damaging, de-stimulating, based-on-fantasy spending cuts package of the vital entitlement programs many American citizens rely on to stay alive. And to the world, it would appear that our 3 branch system is being employed, and thus, even if the House is clinically insane, at least America still has courts to act as a check and safeguard the nation.

Additionally, a huge public display by hundreds, even thousands of citizens filing suit could bring attention to the people who are being most directly held hostage by the Republicans terrorist tactics. No doubt there are decorated veterans and very empathetic people who would be affected and would make a great public face for the harm being done - and some may have stories the media would be eager to cover.

And if ultimately the Supreme Court decides in a 5/4 vote that the debt ceiling is in fact constitutional, President Obama could still then order the minting of a $3 trillion coin and be done with it. Even then, he still has the 14th Amendment.

Of course best of all would be if someone (Mr. President) would actually debunk the supply-side/Milton Friedman/Ayn Rand drivel in the first place, then we wouldn't have to keep suffering through the carnage of horrible economic policy, and be constant hostages on account of the authoritarian followers of Hoover/Reagan/(Obama?)nomics!


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Comment Preferences

  •  Tip Jar (1+ / 0-)
    Recommended by:

    There are those who look at things the way they are, and ask why...
    I dream of things that never were, and ask why not? ~ Robert Kennedy

    by Reality Bites Back on Sun Jul 31, 2011 at 01:16:16 AM PDT

  •  anyone else get this email (6+ / 0-)

    from The Pen?  I'm not a legal expert but this is what they've said:

    President Must Invoke 31 USC 3102 Action Page:

    With this context, it is astonishing that apparently nobody has bothered to read the text of Public Debt Law of 1941 itself, embodied in 31 USC 3101, which is what codifies a national debt limit. That law states that

    "The face amount of obligations issued under this chapter and the face amount of obligations whose principal and interest are guaranteed by the United States Government (except guaranteed obligations held by the Secretary of the Treasury) may not be more
    than [some arbitrary huge number] . . . "

    Please take careful note of the words "EXCEPT guaranteed obligations held by the Secretary of The Treasury". By undeniably clear law as passed by Congress, such obligations are NOT constrained by any
    so-called debt limit. Now all you have to do is run your finger down to the very next section 31 USC 3102 [Bonds] and you will read "With the approval of the President, the Secretary of the Treasury may borrow on the credit of the United States Government amounts
    necessary for expenditures authorized by law . . . "

    By this section Congress gives the President the EXPRESS, inherent and unilateral authority to direct the Secretary of the Treasury to incur obligations to cover all expenditures authorized by law, which is to say the sum of the appropriations bills Congress has already passed. And as we have just so clearly demonstrated such obligations are immune from any so-called debt ceiling limitation. Surely there is some White House attorney smart enough to figure this all out as we have.

    The President must invoke this authority now, as he is fully empowered to do by 31 USC 3102. And then Congress needs to get serious about raising the revenues to pay its bills, and not just on
    the backs of poor people.

    •  Great comment. (1+ / 0-)
      Recommended by:

      If with all the legal advisers the President has access to, all of this is known and not being acted on, there must be some other end game or fix. Is it possible our top politicians are so stupid that they would ignore what appears to be blatant law in their favor? Isn't Obama a constitutional attorney after all?

      What gives?

      There are those who look at things the way they are, and ask why...
      I dream of things that never were, and ask why not? ~ Robert Kennedy

      by Reality Bites Back on Sun Jul 31, 2011 at 02:08:48 AM PDT

      [ Parent ]

  •  Won't have standing . . . (1+ / 0-)
    Recommended by:
    Reality Bites Back

    And that is the only thing that matters.

    The only party that would have standing on this issue is Congress acting as one body as a means of challenging a presidential action.  Litigation by a private citizen or even citizenS would have zero chance of getting a hearing.  The courts will say: "this is a political question involving the Congress and the President.  Until they ask us to step in to resolve the question, it is not for us to weigh in.  If you don't like what your representatives aren't doing, then elect new representatives."

    Additionally, the "validity" of the debt isn't being called into question if the President continues to pay off bondholders.  It will only come into question if money to pay the bondholders isn't there.  In August we have the money to honor T-Bills that come due and the administration has already signaled that they will have priority.

    •  Not to mention that most of us ... (0+ / 0-)

      lack the funds to hire the lawyer to bring suit.  And inasmuch as this type of case would never be taken on contingency, the initial retainer would probably be tens of thousands of dollars.

      "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

      by Neuroptimalian on Sun Jul 31, 2011 at 01:48:02 PM PDT

      [ Parent ]

      •  You don't need a lawyer to file a lawsuit. (0+ / 0-)

        That's a sort of urban myth that the legal industry encourages to keep business rolling in. Any person who has a cause of action may file a lawsuit in their own name as a plaintiff without a lawyer. The ONLY thing you need to pay is a filing fee, usually about $300, which is far less than most of us stand to lose if there's a default. I don't think you even need to pay for service of process if you're suing the government, not sure but I think as long as you send notice to the right office designated by statute they must accept it.

        Most every court has someplace on their website which tells individuals how to file a lawsuit.

        •  The typical person ... (0+ / 0-)

          would have no clue what statute(s) to cite, much less how to formulate a legal argument.  Besides which, the cost would be much more than the $300 you suggest; i.e., discovery costs, appeal costs, etc.  Even photocopying and postage costs are substantial over time.  Filing in Federal Court is not an undertaking to be taken lightly, especially given that co-counsel could move for sanctions.  And given that no individual is likely to make a successful argument of standing, it'll all be money out the door, never to be seen again.

          Small Claims cases are one thing, but Federal Court cases should not be undertaken by non-attorneys unless one is incarcerated and poor.

          "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

          by Neuroptimalian on Sun Jul 31, 2011 at 03:28:44 PM PDT

          [ Parent ]

  •  The 14th Amendment only requires that (2+ / 0-)

    existing debts be paid, not that new debts be issues. There's more than enough revenue flowing into the Treasury to covera all existing debts, however that is defined.

    •  actually it merely requires that those debts (0+ / 0-)

      not be questioned.  If there is not money to pay them on time not clear if even that would be in violation.  In any case, I agree with your point that the 14th is irrelevant to the debt ceiling limitation.

      Scientific Materialism debunked here

      by wilderness voice on Sun Jul 31, 2011 at 06:21:52 AM PDT

      [ Parent ]

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