14th Amendment: Trump Card for Democrats?

Thursday, 07 Jul 2011 08:54 AM

By Martin Gould

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Barring any deal from budget talks today, the Obama administration could find an end run around the debt-ceiling crisis by invoking the 14th Amendment’s stipulation that the validity of the country’s debt “shall not be questioned.”

The amendment, ratified in the aftermath of the Civil War, means that all debts must be paid, Democrats contend, and therefore the idea of a default resulting from the refusal to raise the limit cannot be allowed.

The question was raised first by economist Bruce Bartlett, who worked in the Reagan and George H.W. Bush White Houses before becoming a fierce critic of George W. Bush’s economic policies.

“The debt limit is a statutory law which is trumped by the Constitution which has a little known provision that relates to this issue,” Bartlett wrote in The Fiscal Times in April. “This could easily justify the sort of extraordinary presidential action to avoid default.”

The president ducked the question of whether refusing to raise the ceiling could be unconstitutional, when asked during a recent press briefing. But Treasury Secretary Timothy Geithner has already raised the possibility of invoking the amendment.

“There are some people who . . . think there's leverage for them in threatening a default," Geithner told Politico’s Michael Allen on May 25. "I don't understand it as a negotiating position. I mean, really think about it, you're going to say that? Can I read you the 14th Amendment?”

Geithner said any Republican who argues, “If you don't do things my way, I'm going to force the United States to default,” does not have a credible negotiating strategy.

“It's not going to happen," he insisted.

Section 4 of the 14th Amendment states: “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.” It then goes on to stipulate that debts incurred by insurrectionists or claims for loss caused by the emancipation of slaves were not covered.

The idea has hardly been mentioned in the weeks since Bartlett first brought it up, but with the Aug. 2 deadline to reach an accord just a month away, it suddenly has come into play.

Last week, Keith Olbermann made a huge issue of it on his Current TV show “Countdown,’ saying the strategy has major political bonuses for the Democrats, as it would be using the tea party’s mantra that all legislation should be backed by the Constitution while arguing against its position on raising the debt ceiling.

The Huffington Post’s Ryan Grim, who was Olbermann’s guest, told him the idea is being discussed by “rank-and-file Democratic senators.”

“It’s very, very simple,” Grim said. “It’s right there in black and white.”

He claimed constitutional law professors back up his reading of the amendment.

“It is awfully ironic, because the tea party is the one that elevated the Constitution in this last election and Democrats would be saying, ‘Here is the very plain language. Do you agree with the plain language of the Constitution or do you not?’

“It would put them in a very tough situation.”

When asked about the issue on “Fox News Sunday,” Republican Sen. John Cornyn dismissed invoking the 14th Amendment as “crazy talk.”

“It's not acceptable for Congress and the president not to do their job and to say somehow the president has the authority to then basically do this by himself," the Texas senator said.

"We ought to sit down and work together, and it shouldn't take the form of press conferences like the president gave last week, where he was essentially the schoolmarm, scolding Congress for not getting its job done when, in fact, he is the one who has not stepped up and given us a proposal.


"We'd like to see what his proposal is," added Cornyn, a member of the Senate Finance and Budget committees. "Let's do it in the light of day, not in secret behind-closed-door negotiation — only to spring it on the people at the last moment, saying it's this, take it or leave it, or else there is financial calamity."

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