House Democrats are reviving an idea that was last popular during the debt ceiling fight of 2011, urging President Obama to consider declaring the debt limit unconstitutional and denying Republicans the chance to wrest spending concessions in exchange for raising the nation’s borrowing limit.
On Thursday, White House spokesman Jay Carney for the first time ruled out that maneuver, indicating that President Obama does not believe the 14th Amendment to the U.S. Constitution gives him the right to ignore the legal debt limit.
But that opinion is not shared by some Democrats on the Hill, who think that the amendment’s requirement that the validity of the country’s public debt “shall not be questioned” means that Congress cannot tie the government’s hands to borrow funds to meet obligations that the United States has already incurred.
“I’m not a constitutional expert. I’m not even a lawyer. But I do know plain English — I used to teach English. I think that wording is pretty clear to me,” Rep. James E. Clyburn (D-S.C.), the House’s third-ranking Democrat, said in an interview.
Obama has said that Republicans must agree to raise the $16.4 trillion debt limit now as part of a deal to avoid the year-end “fiscal cliff.”
The alternative for Democrats would be to negotiate the debt limit hike as the nation approaches the ceiling in February, a time when Republicans could repeat the strategy they pursued last year to force major spending cuts in exchange for allowing fresh borrowing. If the debt limit were kept as is, the government would default on its obligations.
Democrats have much more leverage this month if they negotiate a debt ceiling increase along with a deficit reduction package that would avert the tax increases and across-the-board spending cuts set to take effect in January.
Rep. Peter Welch (D-Vt.), who, along with Clyburn, urged the president to consider the option last year, will circulate a letter asking Obama to reconsider the issue among colleagues when the House returns to Washington next week.
“The president, I think, would be very well-advised to make it clear that he will not allow America to default,” Welch said in an interview. If House Speaker John A. Boehner (R-Ohio) “brings us into default, the president should use the 14th Amendment to protect the economy from reckless political conduct.”
Sen. Richard J. Durbin (D-Ill.) said Thursday that he, too, believes Obama should retain the constitutional option, noting that Congressional fighting over the issue last year spooked markets and led to the nation’s first ever credit downgrade.
“I’ve always thought it was an option,” Durbin said. “The president said himself, and his people, that they weren’t considering it. But I don’t think they ought to rule it out.”
Constitutional scholars are split on the move’s legality. Yale Law School professor Jack M. Balkin said he believes the amendment provides guidance for how Obama should handle the nation’s bills if the debt ceiling were breached, but that it doesn’t give Obama the right to ignore the limit entirely. He said the amendment means that the president must ensure that the nation’s bondholders are paid first; he would have to order a partial government shutdown if the nation entered default. That might compel a political deal, he said.
Obama might also shy from invoking the amendment in the Democrats’ favor because doing so could spark a battle with congressional Republicans.
“There is absolutely nothing in the 14th Amendment that gives him the authority to do that without an act of Congress authorizing it,” said Sen. Mike Lee (R-Utah), a lawyer who served as a Supreme Court clerk, as he took a copy of the Constitution from his pocket to point to the “shall not be questioned” language.
He noted that the amendment itself refers to public debt as authorized by Congress.
“That’s why it’s perplexing to me that anyone would cite the 14th Amendment as a source of authority for the president’s supposed ability to do this without an act of Congress,” Lee said. “I don’t know what the consequence of that would be. But that creates a huge constitutional problem. That creates a crisis.”
To avoid that showdown, the administration would prefer to negotiate a solution with Republicans now, particularly because the White House is convinced the GOP leadership was shaken by last year’s fight and is not anxious to repeat the experience this year.