If Obama invokes the 14th Amendment to avoid default, he might be impeached — but so what?
Part of the Fourteenth Amendment to the U.S. Constitution reads as follows:
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.
Could President Obama invoke that passage to save the federal government from defaulting on its debts?
Hendrik Hertzberg, by way of a comparison with certain problems faced by Abraham Lincoln, PONDERS the situation in which Obama currently finds himself:
The President is constitutionally sworn to “take Care that the Laws be faithfully executed,” but if he enforces the debt ceiling, established by one law, he cannot meet obligations that other laws command him to fulfill. Nor can he submit to blackmail, lest the Constitution be informally amended to provide that any law, duly passed by the House and the Senate and signed by the President (and, if challenged, upheld by the Supreme Court), may be effectively voided by the action of one faction of one party in one half of the national legislature. And he absolutely cannot permit default, the consequences of which would be global and catastrophic.
It is widely said that the Obama Administration has “ruled out” recourse to the fourth section of the Fourteenth Amendment. Not so. In 2011, when the Republicans test-drove their debt-ceiling gambit, Timothy Geithner, then the Secretary of the Treasury, read the section to a breakfast gathering of reporters. A squall ensued; the President calmed it, saying that “lawyers” had advised him that the Fourteenth was not a “winning argument.” Similarly cagey equivocations have been forthcoming this time around. Obama has been careful to keep the option on life support. At his news conference last Tuesday, he noted that there had been some discussion about his powers, under the amendment, to “go ahead and ignore the debt-ceiling law.” He continued:
Setting aside the legal analysis, what matters is that if you start having a situation in which there’s legal controversy about the U.S. Treasury’s authority to issue debt, the damage will have been done even if that were constitutional, because people wouldn’t be sure. . . . What matters is: what do the people who are buying Treasury bills think?
What also matters, of course, is: compared with what? In the end, Obama could have no honorable choice but to invoke the Fourteenth. There is little doubt that he would prevail. The Supreme Court would be unlikely even to consider the matter, since no one would have standing to bring a successful suit: when the government pays its bills, who is damaged? The House Republicans might draw up articles of impeachment, adopt them, and send them to the Senate, where the probability of a conviction would be zero. This would not be a replay of Bill Clinton and the intern. President Clinton was not remotely guilty of high crimes and misdemeanors, but he was guilty of something, and that something was sordid. Yet impeachment was what put Clinton on a glide path to his present pinnacle as a wildly popular statesman. President Obama would be guilty only of saving the nation’s economy, and the world’s. It would be all he could do to head off a post-Bloombergian boomlet to somehow get around another amendment, the Twenty-second, and usher him to a third term.