Bring On the Constitutional Crisis

The Daily Beast, Wednesday, July 6, 2011, 5:12am (PDT)

By Michael Tomasky

By now you may have heard of the idea that the administration can simply raise the debt limit unilaterally, and to blazes with the Congress, based on Section 4 of the 14th Amendment. If you have, then you probably also know that some worry that such a move would precipitate a constitutional crisis. It's so universally assumed that such a crisis would be a bad thing that most commentators don't even feel the need to make the case. But maybe a constitutional crisis is just what we need.

First, some background if you're not in this loop. This discussion began, to the best of my knowledge, on April 28, with a piece on The Atlantic website by the respected law professor and writer Garrett Epps, who wrote that if one simply reads the 14th Amendment, specifically Section 4, one would see plainly that the Constitution guarantees the creditworthiness of the United States. The salient language reads: “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.” The next day, conservative economist Bruce Bartlett ran with the suggestion.

Epps provides fascinating and all-too-relevant background. The Civil War had just ended, and the states of the former Confederacy wanted the United States to pay Confederate debt. They threatened to destroy the good credit rating of the United States to do so. Epps has a fascinating history in the post linked to above, as does Yale's eminent Jack Balkin here and here. It is just amazing how little things change.

The long and short of it is that there is a highly plausible argument to be made that Congress need not have a thing to do with raising the debt limit. Its involvement is customary, but apparently not legally necessary. Or rather, no one yet knows. It's never been tested. The Supreme Court has never ruled on it. I read the Epps piece with interest and asked a couple of other legal scholars about it, and they thought the case was not as clear-cut. I assumed that this was something Obama would never do anyway and so set it aside.

In recent days, more and more observers have begun to understand what Treasury Secretary Tim Geithner meant when, at a May 25 public interview with Mike Allen, he said default was impossible because it is forbidden by the Constitution. He read directly from Section 4. It was not a subtle thing to do. The matter just wasn't on the high-punditry radar screen yet.

Now it is. Would the president—this president of all presidents, the guy who still wants everyone to play nice and share their cake and just all get along—really stand up there on Aug. 2 and say, it if came to it, that Congress doesn't matter, he's raising the debt ceiling? What an intense move that would be.

I'm not quite prepared to say I relish seeing it. But this past weekend, as I reflected for some moments on the vulgar hijacking of our constitutional heritage by a bunch of brigands who use revolutionary attire and rhetoric to clothe what is essentially a selfish, I-got-mine-Jack worldview, I wonder if a constitutional crisis isn't exactly what we need.

Republicans in the House would, according to George Washington University law professor Jonathan Turley, be able to vote on whether they would sue the president. They would almost surely do so. Some of them would undoubtedly call for Obama's impeachment, as would the usual right-wing media loudmouths. Obama would have to go to American people and finally, really, comprehensively explain what he did—that he sought a debt deal that was 83 percent on the GOP's terms, but 83 percent wasn't good enough for them.

Which brings up another point. If you're in the center or anywhere left of it, there are only two possible outcomes to debt-ceiling negotiations: terrible and unthinkable. The former would involve a successful deal between the parties, which will rip into domestic programs that help poor and working-class people and will do so without touching tax rates or the defense budget in any meaningful way. That's terrible. Unthinkable is no deal by Aug. 2, which brings default and calamity.

Neither of those outcomes being much good, why not a crisis? Maybe Obama should force this important question. And maybe this Supreme Court would rule against him, but this crisis would have been averted (presumably any court ruling would affect only future debt-limit votes) and he'd have shown the Republicans that he can play hardball, which I bet they don't now think he can. And finally, some scales would have fallen from his hopeful, consensus-seeking eyes. So if panic there must be, let's have one. I'm sure our con-law/history-buff president knows what Thomas Paine said about them.