There seems to be quite a lot of confusion over what the President can unilaterally do in invoking the Fourteenth Amendment (over a thousand comments mentioning it in the last three days), so I thought I'd summarize what some of the (informal) scholarship about the duties and limitations of the President would be in this case. I realize this is now moot in light of the debt ceiling "compromise", but it's worth knowing exactly why that argument had so little support, and probably for the better.
A quick summary: the President has no authority to act unilaterally on the debt ceiling except maybe after a series of events which haven't yet occurred. The sole option was a deliberately unconstitutional move relying on the fact that SCOTUS doesn't like taking political questions, and the hope that impeachment proceedings would be unpopular with voters.
Just a few notes: this is strictly about the proposed Fourteenth Amendment solution (unilaterally raising the debt ceiling). I'm not addressing either the coin seigniorage argument or the pros/cons of the deal that was actually struck. One plank at a time.
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Amendment XIV, Section 4
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. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Do the requirements of this section give give the President the power, if not the obligation, to raise the debt limit? Here are some common questions:
Truman raised it unilaterally... Why can't Obama follow suit?
Far from raising it unilaterally, Truman saw the debt ceiling lowered by Congress during his administration - the only President who saw an overall decrease during his time in office. The Truman myth apparently originated via a quote from Representative Clyburn, who likely confused it with Truman's executive overreach in Youngstown (in which SCOTUS ruled against him for seizing steel mills during wartime.) edit: a probable misquote of Clyburn by Politico.* Truman did set a cap on the Department of Defense's budget request, a power entirely within his purview. But he never raised the debt ceiling, much less unilaterally.
* See, for example, how The Hill covered this same speech. Given the evidence this looks like a slip on Epstein's part, and it's crazy how quickly memes can propagate.
Doesn't the President have a duty to preserve the nation?
Now we're getting to the meat of the issue. This is what Posner and Vermeule argued in their NYTimes editorial, one of the first to lay out a Constitutional case for invoking the Fourteenth as justification for unilateral action: to wit, in the event that no debt ceiling agreement could be reached, the President has a duty to the nation to intervene unilaterally. However, not many people were convinced, least of all by their version of the history. Here's Lederman's response:
The Constitution does not, of course, mention or imply any such "paramount duty" of the President to violate statutes in order to "ward off recession or other serious threats." ... [The history] undermines rather than supports Professors Posner and Vermeule's unilateral executive power thesis. Accordingly, it appears that history, like constitutional text and structure, is unavailing.
Furthermore, this particular theory requires the President not only to violate statute (itself a shaky proposition), but as Chemerinsky argues, to directly violate the enumerated powers of Congress in an area where the Constitution is crystal-clear about separation of powers:
Unfortunately, there is no plausible way to read this provision as providing the president the ability to increase the debt ceiling without congressional action.
Tribe agrees:
The Constitution grants only Congress — not the president — the power “to borrow money on the credit of the United States.” Nothing in the 14th Amendment or in any other constitutional provision suggests that the president may usurp legislative power to prevent a violation of the Constitution.
That's well and good, but what if we're on the verge of collapse?
Here's where things get vaguer and more contentious. Balkin argues that the combination of the President's duties to preserve the nation and the requirements of the Fourteenth Amendment could give him unilateral power - but only after every other option, including government shutdown, has been pursued (emphasis mine):
What if Congress still won't budge after months of government shutdown? Even then, Obama has to wait until the markets threaten to implode and the validity of the public debt is put into question. Then Section 4 says comes into play again, and, in that extraordinary set of circumstances, would require him to act to prevent a meltdown.
(Adler generally agrees.)
To clarify a bit of confusion: Balkin did say that the President is already using the Fourteenth, insofar as he's already guaranteed that debt payments will be met, likely through means other than borrowing. This was a bit misconstrued in the comments to a recent FP post, among people who thought Balkin was referring to raising the debt ceiling. Not even close, at least for now: he's saying that if the debt ceiling isn't raised, the Fourteenth Amendment requires that cuts be made, including
less money for other government services, including social safety net programs like Medicare.
As such, there's a significant difference between Balkin's (et al.) defense of unilateral action, which wouldn't be relevant until months from now, and the House Progressive Caucus, who want the President to invoke it preemptively. The same Progressive Caucus that warned against executive overreach of Congress re:Libya, I might add.
Back up a minute... Is the President even allowed to prioritize payments?
Good question! Answer: nobody knows, but the hierarchy of law would likely force prioritization before it forced a Constitutional crisis over the validity of debt. Epps, one of the first to argue in favor of the Fourteenth option, is vociferous no on this one (but does not explain why more borrowing is the only solution). Korobkin assumes that prioritization is correct, while Stern though dubious that this is an automatic requirement, sees it as a "plausible" extension of Perry v. United States.
Update: for more on this issue, see johnny wurster's comment below.
The bottom line is that payment prioritization, including government shutdown, was always the most likely scenario if the debt ceiling hadn't been raised. Certainly there is considerable disagreement about whether a shutdown would have been worse than the current compromise.
So what? It's really a political issue, not a legal one. Do it and dare the Republicans to impeach.
Ultimately, this is what the argument to the Fourteenth comes down to: a forced Constitutional crisis that relies on political brinkmanship. And maybe that's what people want. Zasloff sees it that way:
Perhaps the only loser is the Constitution. But even that’s not for sure, and since Bush v. Gore, Republicans certainly have no basis for complaining about that. Besides, playing games with Constitutional text to escape political crises is as old as the Republic itself.
True enough, but an even shakier proposition from a President whose voting record toward the debt ceiling does him no favors, and whose recent "regret" makes the political angle that much harder to sustain with a straight face.
Furthermore, this line of argument makes a giant assumption that I don't think is particularly wise or defensible: that voters will look favorably on the Democrats if the Republicans begin impeachment proceedings. In a media landscape where they give Biden more grief for allegedly referring to the Tea Party as "terrorists" than in actually criticizing the Tea Party for its actions, I'd be wary of placing my bets on that horse.
Your mileage may differ.
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So why was the Fourteenth Amendment never on the table? In the end I suppose you could chalk it up to political cowardice on the part of the administration (or, assuming that this is the deal they wanted from the beginning, political machinations), but I'm hard-pressed to find a strong enough argument in favor of the Fourteenth Amendment option that would justify its use. Frankly it's even weaker than the Administration's decision to turn over its Libyan campaign to NATO without Congressional approval.
So that's it, then? Total surrender?
Right now isn't the time for strategic planning: people need to vent. But we do have to start planning eventually, and no matter how you're feeling about the Administration or the Party or the State of the Universe, there's one thing I hope we can all agree on: there is a significant difference between a House led by Speaker Boehner and a House led by Speaker Pelosi.
It's not about individual Democrats, or even blocs: it's about who has the power to direct funding bills that come out of that chamber. A Republican House, even with a majority of one, will continue to be intolerable.
For my own part, I'm not donating a red cent to the Obama campaign. This isn't fueled by animosity, but by practicality: win or lose, the Obama machine is a monstrous fundraiser, and doesn't need my cents, red or otherwise. House races do, and we've got a lot of work cut out for us.
The sooner, the better.