Earlier today Jonathan Bernstein wrote about the president’s legal options as the debt limit deadline approaches, and concluded that if he decided to ignore the debt limit on constitutional grounds, the president would likely prevail in a legal dispute with Congress. For what it’s worth, I’m persuaded by Yale Law Professor Jack Balkin’s argument that the 14th Amendment, at the time it was passed, was meant precisely to avert partisan confrontations that could lead to default. There’s something ironic about the fact that at the time it was passed, it was Republicans who worried that Southern Democrats would force default in the aftermath of the Civil War.
That said, I’m not sure that politically it’s such a good idea for the White House and Dems to go this route. A prolonged legal battle over the constitutionality of the debt limit could defeat its own purpose by further hampering a weak recovery. The White House obviously wants a deal, banking on the idea that Obama will look more attractive to independent voters if he looks more like a problem solver than a partisan warrior.
The other problem is that the political groundwork for ignoring the debt limit was laid too late. Liberals started arguing for the constitutionality of this approach after the hostage situation had already materialized, meaning that despite the merits of the position that default is unconstitutional, it now just seems like Democrats are trying to find an excuse to avoid making a deal.
Had liberals made this argument in force months ago, when Republicans were telegraphing their intention to hold the debt ceiling hostage, it might have been useful in strengthening the Dems’ hand in negotiations. Republicans have had the upper hand in the talks largely because they’ve been willing to “walk away,” so to speak, or at least give everyone the impression that they’re willing to do so. Democrats have done the opposite, insisting the limit must be raised but making it clear they were willing to make concessions to make it happen.
Even if they never intended to pursue the “constitutional option,” it’s a strategic failure that it wasn’t used as leverage. I’m not as pessimistic as Bernstein seems to be on the prospects for an ultimate deficit-reduction deal. I just think it’ll probably be an ugly one that could have been avoided had Democrats been more aggressive in their approach from the outset.