Balkin critica Obama

Friday, July 22, 2011

Why Obama won't invoke section 4, continued

JB

At a town hall event in College Park, Maryland, President Obama swatted away
suggestions that he invoke section 4 of the Fourteenth Amendment to issue new debt
despite the debt ceiling, noting that he had "talked to [his] lawyers and "they are
not persuaded that that is a winning argument."

Now, the gentleman asked about the 14th Amendment. There is -- there's a provision
in our Constitution that speaks to making sure that the United States meets its
obligations. And there have been some suggestions that a President could use that
language to basically ignore this debt ceiling rule, which is a statutory rule. It’s
not a constitutional rule. I have talked to my lawyers. They do not -- they are not
persuaded that that is a winning argument. So the challenge for me is to make sure
that we do not default, but to do so in a way that is as balanced as possible and
gets us at least a down payment on solving this problem. [...] But I’m sympathetic
to your view that this would be easier if I could do this entirely on my own.
(Laughter.) It would mean all these conversations I’ve had over the last three weeks
I could have been spending time with Malia and Sasha instead. But that’s not how our
democracy works. And as I said, Americans made a decision about divided government.
I’m going to be making the case as to why I think we’ve got a better vision for the
country. In the meantime, we’ve got a responsibility to do our job.
Obama's political strategy is to use the debt ceiling crisis to put pressure on both
Congressional Republicans and Democrats to put together a big deficit reduction deal
that will establish him as a reasonable moderate and "the only adult in the room"
and help ensure his reelection in 2012. Therefore it makes no political sense for
him to say that he can invoke section 4 and solve the crisis by himself. That would
take all of the pressure off members of Congress (in both parties). (For the same
reason, he prefers a big deficit reduction deal to a clean bill raising the debt
ceiling or even the McConnell plan, which gives Congressional authorization for him
to act unilaterally).

Quite aside from his political strategy, Obama does not appear to believe that he
can act constitutionally under present circumstances. You should not assume that he
is not telling the truth. There are at least three reasons why he might believe
this:

(1) There is another perfectly legal fail safe available (e.g., coin seigniorage)
that he does not want to publicly announce, but that he will use if we get past the
August 2 date; as long as a legal alternative exists, there is no justification for
him to ignore the debt ceiling to preserve the validity of the federal debt.

(2) He believes that the markets will start to send strong signals in the days
leading up to the deadline, which will frighten Congress into acting, just as they
did in the crisis that led up to the passage of TARP. Congress will exercise its
constitutional responsibilities, so there is no constitutional need for him to act
unilaterally.

(3) He believes that as the deadline approaches, statements by the Secretary of the
Treasury that Social Security checks will not be mailed out will cause Congress to
fold like a house of cards. Once again, Congress will exercise its constitutional
responsibilities, so there is no constitutional need for him to act unilaterally.

Suppose, however that neither (1) (2) or (3) is the case: he has no other legal fail
safe and despite market warnings and concerns about Social Security checks, Congress
is so hamstrung that it cannot act and he does not believe that it will act in time,
as the U.S. economy (and the world economy) melts down. At that point, I expect his
views on the constitutional option will change rather quickly.

However, Obama does not want to cross that bridge until he comes to it. Nor does he
want to signal--or even hint--what he would do if he came to that bridge. That is
why he making these public statements.

You should keep this in mind as you try to understand why Obama seems to be ignoring
the life preserver of section 4 that people to his political left keep pointing to
in ever more urgent terms. It is not that he doesn't see it. It is rather that he is
deliberately rejecting it. For now.

You should also understand, however, that both Congress and the President have a
constitutional duty to prevent the validity of the federal debt from being
questioned. Obama is not simply making a constitutional argument; he is also playing
a political game. He believes that Congress is acting irresponsibly and he is acting
responsibly, and that time is on his side. Nevertheless, his constitutional duty is
to prevent the validity of the federal debt from being questioned even if Congress
is acting irresponsibility and even unconstitutionally. At some point, his
underlying constitutional obligation to preserve the Republic must overcome his
political desire to win. Certainly that point would be reached if the economy begins
to melt down and Congress is politically paralyzed. Then he must act.

Read other posts on the debt ceiling crisis