As we move slowly toward the still-slim possibility of default, we find ourselves in a peculiar predicament. Once again, we are being treated to the novel suggestion that, in the unlikely event that Congress refuses to raise the debt limit, the president should step in and act unilaterally. And, once again, the president is refusing to entertain the idea.
On the surface this seems to buck the conventional wisdom. One would expect the chief executive to be proposing this idea over the screaming opposition of Congress. But the tables are turned. “I have talked to my lawyers,” Barack Obama said calmly in 2011, and “they are not persuaded that that is a winning argument.”
This position apparently remains unchanged. In December of 2012, Jay Carney confirmed to reporters that the White House “does not believe that the 14th Amendment gives the president the power to ignore the debt ceiling — period.” As recently as last month, National Economic Council director Gene Sperling explained that the administration has “never found that there was such extraordinary authority.”
Members of Congress, meanwhile, seem to be thrilled by the idea of having their roles usurped. “I think the 14th Amendment covers it,” a blasé Nancy Pelosi told reporters in late September. “The president and I have a disagreement in that regard, I guess!” In 2011, Harry Reid made it clear that he has a “disagreement,” too. “We believe you must be willing to take any lawful steps to ensure that America does not break its promises and trigger a global economic crisis,” Reid wrote — and “without congressional approval, if necessary.” Among a host of other members of Congress who think that the 14th Amendment is “an option that should seriously be considered” is retiring Senate Finance Committee chairman Max Baucus.
Given this president’s shaky commitment to the constitutional limits on his power, it is difficult to believe that he is here demonstrating a virtuous restraint. Instead, one suspects, he is playing political hardball, adding publicly to the sense that the stakes are real and lending credibility to the suspicion that a grave crisis is brewing. After all, to imply that he could just step in if necessary would be to take the pressure off Congress.
Nevertheless, whether or not he actually believes his own words, the president is right to demur. For a start, the proposed 14th Amendment solution is simply never going to happen. In order to mitigate the serious risk of the Supreme Court’s simply invalidating all presidentially blessed debt, the interest rate on any extra-constitutional bonds would have to be unreasonably high, as the American Enterprise Institute’s Peter Wallison has observed. Moreover, Wallison writes, “the yield on all US government debt would probably rise after the issuance of a questionable debt instrument, as investors began to doubt the sanity of those in charge at the Treasury.”
Legally speaking, too, the theory is nonsensical, belonging as it does to the same anachronistic and unlettered school of constitutional interpretation that has led to the laughable suggestions that a “general welfare” line written in the late 18th century was intended to refer to New Deal–era redistributionary transfer payments, and that the “militia” clause in the Second Amendment (1791) refers to the National Guard (established in 1903).
The constitutional scholar John Yoo, who is usually expansive in his conception of executive power, has observed that most advocates appear to be reading the document without any reference to the general understanding of the time in which it was written. It is, Yoo argues, “as if Obama supporters [were] reading the text of Article IV, which says that the United States shall protect the states from ‘domestic violence,’ and concluding that the federal government can prevent spousal abuse.”