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The Debt Ceiling Battle: Why Not Try the 14th Amendment?

Updated on January 9, 2013

Before the term “fiscal cliff” was entered into the past history of the Country, Republicans and Democrats had already staked out their positions for the next great economic cliff—the debt ceiling issue. Republicans had vowed to use raising the debt ceiling as a means of forcing President Obama and the Democrats to cut spending on entitlement programs (although they didn’t call it that) and to end the automatic spending cuts in defense spending. But President Obama vowed not to negotiate over the debt ceiling, because the nation’s credit rating was downgraded the last time (2011) lawmakers threatened inaction on the debt ceiling and that families and businesses cannot afford that dangerous game. However, Senate Minority Leader Mitch McConnell, like an angry lion, growled back: “It is a fight we are going to have.”

In the fiscal cliff deal, Obama caved on his promise to the American people during the presidential campaign that tax rates on individuals making $200.000 and families making $250.00 would be increased to the level prior to the Bush tax cuts. He agreed to set the figures at $400.000 and $450.000, which left many of his supporters disappointed. However, in public their disappointment was veiled. Conversely, Virginia Congressman Robert C. “Bobby” Scott expressed his disappointment by voting against the deal and then stating it to the media. Republicans got must of what they wanted in the deal, and yet they seem angry that they didn’t get it all. According to their statements on national television, they plan to take out their anger in the debt ceiling battle.

Many of the Tea-Party Republicans in the U. S. House of Representatives have already said they are willing to close down the government in order to get the spending cuts they want. “Obama vows to do more than reduce the deficit but continues to insist that any future spending cuts must be balanced with tax reforms,” Mary Bruce on ABA OTUS News wrote. “The wealthiest individuals and the biggest corporations shouldn’t be able to take advantage of the loopholes and deductions that aren’t available to most Americans.”

As President Obama explained in 2011, “Raising the debt ceiling does not allow Congress to spend more money. It simply gives our country the ability to pay the bills that Congress has already racked up.” The current limit set by Congress is $16.4 trillion, and the country hit that limit on the last day of 1012. Unless the debt ceiling is raised by March, the U.S. Treasury will not be able to pay the bills. A “manufactured crisis” over the debt ceiling, warned Obama, could wreak havoc on the economy.

“In the past,” Obama noted in 2011, “raising the debt ceiling was routine. Since the 1950s, Congress has always passed it, and every President has signed it. President Reagan did it 18 times. George W. Bush did it seven times. In fact, Vice President Dick Chaney said, concerning the two wars that were put on the credit card, that debt didn’t matter. But raising the debt ceiling in the Obama administration is no longer routine. Now the GOP demands spending cuts to match the raise in the debt ceiling. On, Toney Lee wrote: “House Speaker John Boehner (R-OH) signaled he would insist on a dollar-per-dollar match between new spending cuts and borrowing.”

In his first weekly radio address in the New Year, Obama reiterated his position and staked out his ground. He said, “One thing I will not compromise over is whether or not Congress should pay the tab for a bill they’ve already racked up.”

The question is what does the President have in mind when he speaks about not negotiating and not comprising over paying the bills? Some pundits and politicians wonder if he means he will invoke the 14th Amendment, which was suggested in 2011. At that time, the President, who is a Harvard-trained lawyer, alleged that it would not stand up to “muster” (critical examination). From the mind of a non-lawyer, it seems that it would be the right thing to do, because the relevant question is: How can Congress question the debt it has already made? The Amendment indicates that Congress cannot question the paying of bills it has already approved. But the Amendment is not clear and apparently has never been tested in the courts.

Most scholars who have written about the 14th Amendment focus on four basic principles. Martin Kelly in his article, “What is the Fourteenth Amendment and what it means,” follows that pattern. He listed four principles:

· State and federal citizenship for all persons regardless of race or naturalized in the United States was reaffirmed.

· No state would be allowed to abridge the “privileges and immunities” of citizens.

· No person was allowed to be deprived of life, liberty, or property without “due process of law.”

· No person could be denied “equal protection of the law.”

The one principle left is “the validity of the public debt.” Section 4 reads in part, “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for service in suppressing insurrection or rebellion, shall not be questioned.” Not only did Kelly not discuss this statement, Timothy Harper in his book, The Complete Idiot’s Guide to the U. S. Constitution, didn’t write a single line explaining it. The statement seems to be completely ignored—as if it isn’t there. In a sense, it may be called the “invisible clause” in the 14th Amendment.

Since no case has ever been brought to test this clause, and since, during the Obama administration, raising the debt ceiling is no longer routine, it may be time to invoke it. If it runs into a logjam, it may lead to a test case.

House Minority Leader Nancy Pelosi said on national television that if she were president, she would invoke it. Maybe it is time for President Obama to listen to his supporters and colleagues.

It is indeed an idea whose time has come.


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