September 30, 2013

I left out a crucial part of Steve Bell’s response to me in my last post about how the United States is dancing on the debt ceiling. The senior director of the economic policy project at the Bipartisan Policy Center, who believes there is “somewhere between a 15-25 percent” chance of default, says President Obama will have no choice but to defy Congress and invoke the 14th Amendment if Treasury’s borrowing authority is not raised by Oct. 17.

Just to refresh your memory from your bygone civics class, the 14th Amendment discussion centers around Section IV. That’s the one which says the public debt of the United States “shall not be questioned.” As we get closer to that ‘X date’ for destroying the full faith and credit of the United States, I’m of mixed mind.

President Obama (Saul Loeb/AFP/Getty Images)
President Obama (Saul Loeb/AFP/Getty Images)

Right now, I want Obama to maintain his steadfast refusal to negotiate over raising the debt ceiling. But if (okay, might as well say “when” given all the players involved) we’re still in this mess two weeks from now, I could see myself urging the president to go down the constitutionally questionable route of doing whatever is necessary to save the republic, even if it means opening himself up to impeachment.

“The President of the United States cannot allow [the nation to default on its debts]. Therefore, it is possible that the president, using the language of the 14th Amendment to the Constitution, would order payment of our bills on time and in full,” Bell said. “He might be taken to [the Supreme Court] and we would have an existential moment for the entire question of a debt ceiling legislative vehicle.”

For his part, Obama has consistently said that he doesn’t believe the 14th Amendment is a constitutional escape hatch from an economic shutdown, an assertion that was reiterated to NBC News this morning. “Only Congress can raise the debt limit. Period,” a White House official told First Read. But Bell isn’t alone in believing the president will be forced to reconsider his thus-far unmovable position if he’s staring at a real default.

“I don’t think you would want a budget analyst weighing in on what to do when various laws collide – which is what happens when the debt ceiling prohibits us from paying bills for spending we entered into based on existing laws,” Maya MacGuineas of the bipartisan nonprofit Committee for a Responsible Federal Budget told me. “But I can tell you that a default would be so spectacularly foolish and damaging, we should be doing everything possible as we head toward it to avoid it.”

Jim Kessler, of the centrist think tank Third Way, said the White House “may roll the dice on Oct. 17 if they are left with only the choice of default and untested legal authority.” He added, “The economic damage of default could be severe and if the only option is the 14th Amendment, we have to consider it.”

This route is favored by Robert Levy, chairman of the Cato Institute. In a 2011 op-ed, he argued that “[T]he Supreme Court in Perry v. United States (1935) held that . . . authorized and existing public debt must be paid.” This route is also favored by Henry Aaron, a senior fellow at the Brookings Institution. “Failure to raise the debt will force the president to break a law — the only question is which one,” Aaron writes today in the New York Times. “If the debt ceiling is not increased, the president should disregard it, and honor spending and tax legislation.”

Harvard University constitutional law professor Laurence Tribe was having none of it when I reached out to him about this.

The idea that it would be permissible even if unconstitutional for the President to take the law into his own hands and violate the limit set by Congress – either because the limit makes no sense or because nobody would have standing to go to court to stop him – is just a formula for lawlessness and chaos.

And the idea that, even though ignoring the debt limit would indeed be unconstitutional, it would be “less” unconstitutional than alternatives like prioritizing spending until Congress comes to its senses – an idea floated by an otherwise very sensible former student of mine, Michael Dorf of Cornell, and repeated by Henry Aarons in The Times [today] – is likewise a prescription for a free-for-all that abandons the rule of law. We have no metric for comparative lawlessness and are unlikely to agree on one in real time.

Tribe’s view is consistent with what he wrote in a July 2011 opinion piece for the New York Times. “The Constitution grants only Congress — not the president — the power ‘to borrow money on the credit of the United States,’ ” he wrote then. “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.”

Bell presented what he called “a real binary situation” in an e-mail earlier today. “[Treasury Secretary Jack] Lew calls POTUS, says, ‘Hey it’s 11:45 and our computers will not pay any more bills. What do you want me to do?’ ” Bell writes. “Now, think with me, Jonathan: your choice is global market panic or sending the question to the Supreme Court. Duh. Any serious person knows the answer to that binary dilemma . . . give it to the Supremes.”

In Tribe’s response to me, it was clear that he couldn’t disagree more. “The only solution, if Congress sticks to its irresponsible position while the economy collapses around us, would be for the president to hold Congress’s feet to the fire by refusing to back down,” Tribe told me. I’m behind that strategy 100 percent. But if the United States is staring at a default countdown clock at 11:45 p.m. on Oct. 17, the “duh” option might be our only hope.

Follow Jonathan Capehart on Twitter.

Jonathan Capehart is a member of the Post editorial board and writes about politics and social issues for the PostPartisan blog.