Taking the 14th

Ironic that President Obama will openly violate the Constitution over Libya yet sidestep a chance to avoid a major uproar.

The president may well have constitutional authority to direct the Department of Treasury to pay its bills, He could have averted the current spectacle that seems to rival biblical proportions.

Prior to the debt-limit situation, Obama continued military operations in Libya without receiving congressional authorization after 60 days, as required by the War Powers Act in lieu of a declaration of war by Congress.

Republicans exploited the deadline to raise the $14.3 trillion debt limit to sever $2 trillion in programs that serve ordinary Americans without raising taxes on the wealthy or even eliminating corporate tax breaks.

The president may well have had the power all along to act on his own - since 1868, when the 14th Amendment was ratified.

Section 4 of the 14th Amendment is plainly written: “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.”

Obama no doubt had other concerns on his mind with the debt-limit debate. It was a chance to bring the entire conflict to a head, or at least expose Republican stubbornness for all to see. It is obvious that he does not want to act on his own, anyway, because he would be vulnerable to sole political blame.

That aside, he might have avoided this hassle by invoking the 14th Amendment. Like other clauses in the 14th Amendment, Section 4 directly results from a Civil War issue - the large debt that grew after the North borrowed heavily to finance the Civil War, according to The Washington Post. Sponsors of the bill wanted to ensure that Southern states paid their fair share of the nation’s debt. (wp, a4, k7/711)

Yale Law School constitutional law school professor Jack Balkin told the Post, “The purpose of that clause was to prevent the political branches from using default or repudiation as a political threat. It was designed to prevent this kind of gamesmanship.”

Which presents another irony: A heavy proportion of these members of Congress represent states and districts in the South. In fact, House Majority Leader Eric Cantor represents part of Richmond, Va., the capital of the Confederacy.

Two columnists have tried to toss cold water on use of the 14th Amendment, and they make some valid points. Constitutional law professor Laurence H. Tribe points out that a unilateral increase in the debt limit differs from the existing debt limit already authorized by Congress. (nyt, a21, 7/8/11)

Maintaining the debt limit as is will affect all other expenses and any pressing needs that arise. To continue paying the debt, the White House will be forced to ignore spending in other crucial areas. It may not be social security, but it will need to be some important programs.

Tribe also reminds us that “the Constitution grants only Congress - not the president - the power ’to borrow money on the credit of the United States.’ Nothing in the 14th Amendment or in any other constitutional provision suggests tht the president may usurp legislative power to prevent a violation of the Constitution.”

True, but aren’t amendments intended to amend? It states clearly that the debt “shall not be questioned.” Not only are some members of Congress questioning the debt, but they have threatened to ignore it.

Boston Globe columnist Juliette Kayyem writes, “It will not solve the credit crisis, only delay it.” (BGlobe, 7/11/11)

I heartily concur that we should lower the deficit and pay off our debts, but not under circumstances in which one group of politicians can blackmail the president and other members of Congress.

Besides, Republicans were not worried about debts and deficits when President Bush steered us into the invasion of Iraq and initiated legislation to cut taxes for the wealthy.

Kayyem also warns that unilateral action on Obama’s part will trigger a legal challenge. Anyone has a right to resort to legal action.

They tried everything else. Maybe they figure that the majority of the Supreme Court will be on their side.