StanCollender'sCapitalGainsandGames Washington, Wall Street and Everything in Between

Senate Dems Touting 14th Amendment To Avoid GOP Ransom Demands On Debt Ceiling. Could Impeachment Follow?

29 Jun 2011
Posted by Stan Collender

This story by Ryan Grim and Samuel Haass from The Huffington Post is well worth a few minutes of your time.  Their bottom line is that Senate Democrats are starting to see the 14th Amendment to the U.S. Constitution as a way to deal with the impasse over the debt ceiling the GOP has created.  According to Grim and Haass (and a number of others I've spoken with in recent weeks) the amendment, which states "The validity of the debt of the U.S. shall not be questioned," effectively makes a statutory debt ceiling either moot or unconstitutional.  As a result, the Republican strategy of holding the debt ceiling hostage and demanding cuts in Medicare and other programs before it will be released may not work.  After all, it's really tough to get ransom for someone or something that doesn't exist and you don't care about.

The story implies that congressional Republicans would be powerless to deal with this situation because it's not clear whether they or anyone else would have standing to sue the White House. 

Grim and Haass assume that the only possible redress would be in the courts.  I'm convinced, however, that the GOP would have a number of political options.  In particular, the House could...or perhaps almost certainly would...begin immediate impeachment proceedings against both the president and Treasury secretary.  And, as someone who worked for a member of the House Judiciary Committee when it was debating Richard Nixon's impeachment, the articles of impeachment likely would not be limited to the borrowing beyond the debt ceiling issue.  Everything from military activities in Libya to bailouts for the auto industry to whether Obama really is a U.S. citizen would be considered.

The Senate would not be likely to convict if the House voted to impeach and it might be worth it if the result would be to prevent a financial meltdown that would negatively affect the U.S. economy for years.  But it would be ugly nonetheless.

14th amendment

Let's quote the ENTIRE clause of the amendment: "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 phrase "authorized by law" that you conveniently omitted might have some bearing on the question at hand.

It certainly has bearing.

It certainly has bearing. The budget authorization process means spending is "authorized by law". The appropriation process does, too. Congress has legislated twice (except in the case of continuing resolutions) to spend the money. Thank you for pointing that out.

It's not debt until spent,

It's not debt until spent, though. The question is whether the President can issue additional debt in order to finance new spending, and the 14th amendment doesn't get you that far.

appropriations are not debt

Appropriations in and of themselves are not debt. Debt results from issuing notes, bonds, bills and other interest bearing instruments.

 Check the case law.  Here's

 Check the case law.  Here's what the Supreme Court held:

The Fourteenth Amendment, in its fourth section, explicitly declares: 'The validity of the public debt of the United States, authorized by law , ...shall not be questioned.' While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the Civil War, its language indicates a broader connotation. We
regard it as confirmatory of a fundamental principle which applies as well to the government bonds in question, and to others duly authorized by the Congress, as to those issued before the amendment was adopted. *Nor can we perceive any reason for not considering the expression 'the validity of the public debt' as embracing whatever concerns the integrity of the public

There's a trade-off

Impeachment proceedings for Obama, and the DoJ fires up the WAR CRIMES and TREASON trials against Shrub and his homeboys. I wonder who'll be more worried?

Statute of

Statute of limitations?

Anyways, Obama would likely prefer to be impeached than to appear partisan...

Bring it on

Eric Cantor isn't that stupid, is he? File articles of impeachment and you can forget winning the 2012 election, let alone down-ballot seats and initiatives.

Right now, the Democrat's liberal base is demoralized (with good reason; they voted for a Republican but most of them were too stupid to know it then). Why would Boehner/Cantor want to change that?

Yet more stunning - not surprising - contempt for Constitution

"We're not in hostilities" to get around the Constitution so that Obama can have his Caesar's legions to do whatever he wants with them. Can't wait til they cross the Rubicon and we complacent Americans realize the Republic no longer exists.

And now pretends that the 14th amendment overrides Article 1 Section 8

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States

What part of that authorizes the Treasury Dept and President to incur debts that CONGRESS and Congress alone is authorized to pay.

What an absolute treasonous farce DC has become. Does anyone in DC actually read the damn document that have sworn an oath to uphold? Or are they all too busy with their snouts in the trough?

"What part of that authorizes

"What part of that authorizes the Treasury Dept and President to incur debts that CONGRESS and Congress alone is authorized to pay."

The part where Congress has already passed budget resolutions authorizing the spending of the money.

It would be interesting to see the issue argued in court.

It won't be argued in court

The next sentence of Article 1 Sec 8 (my mouse burped the C&P) is

To borrow money on the credit of the United States;

That is a direct and explicitly Congressional authority. It will not go to the Supreme Court for "interpretation". The President will be impeached for violating his oath of office and deliberately undermining the Constitution. Period.

And in the interim, each and every auction of those over-the-limit debt CUSIP's will fail since no one will have any expectation of ever getting paid and primary dealers will have no obligation under the law to make a bid. Which will create a dual currency system (ie constitutional money and anti-constitutional Obamadollars). And then the tax revolt will start.

Constitutional Cherry Picker

Same Article and Section also says Congress has the power to coin and regulate the money supply. Care to tell me the last time when they did that, please? I believe the 14th Section 4 supersedes your interpretation of Article 1 Section 8.

Go Ahead and Impeach

The 14th Amendment will necessarily overrule Article I, Section 8. Obama's right to not have the "validity of the public debt" questioned will overrule the "borrow money" option, simply because Amendments overrule the sections of the Constitution proper that they conflict with.

And yes, the House will probably impeach. And the Senate will acquit by a wide margin. And Obama will very successfully paint this as a politically-motivated persecution of a President who refused to slash the Social Security checks of little old ladies, etc.

The result: Obama wins in 2012 by a landslide, the GOP loses the House, tthe Dems get a filibuster-proof 60 votes in the Senate, Harold Koh replaces Ruth Bader Ginsburg on the Supreme Court, and Andrew Cuomo and Jon Huntsman will be the national front-runners for 2016; it sure as heck won't be any Tea Partiers.

It makes perfect sense for a

It makes perfect sense for a constitutional law professor to ignore the War Powers Act, the debt ceiling, hand out thousands of waivers for his healthcare scam, and illegally stiff senior secured creditors of Chrysler in favor of the unions who steal union dues from their members and then funnel it to King Barack and the Democrats.

I guess Evan Thomas was right when he referred to Obama as a god who is above us all.

Long live King Barack I.

impeachment for adhering to the Constitution ?

maybe I should stay overseas instead of coming back to the loony bin !

Obama Bound to act by oath of office

If I understand this the Constitution trumps any other law like the debt ceiling.

The debt ceiling raise is needed not for new spending but that that has been already authorized by Congress, ie by law and thus the President has 2 duties:
1) Uphold all laws that have been passed
2) The debt has already been committed to over many years so it is valid and "shall not be questioned.

That makes using the 14th a no brainer.

The Presidential oath also requires the President to protect and defend the Constitution. If he does not follow it as laid out above one could argue you could impeach him as well.

In fact all members of Congress took a similar oath so their inaction to provide the debt ceiling action needed to fund the laws passed by them could be deemed a violation of their oath of office subjecting Boehner in particular to impeachment. Right?

The other issue here is that failure to protect the nation's financial system from a meltdown is akin to "war" and the President again is bound to protect the nation as well. Keeping the nation from falling into a deeper recession, higher borrowing costs, higher deficits due to a double dip and the world losing faith in the US as a reserve currency makes his inaction on the 14th impeachable to me.

Failure to act has been estimated to cost the US $50B minimum directly for even a few day default due to increased debt rollover costs and as much as a trillion over a decade not to mention higher borrowing costs for consumers and business as well.

The President has put forth $2T in cuts and asked for $400B in tax loopholes being closed. Every deficit reduction plan that Reagan, Bush I and Clinton did required a combination. Why can't the Repubs simply negotiate in good faith and get this done?

If they do not they will get hung out to dry by the President being forced to act under his Constitutional duty. That surely isn't going to help them defeat Obama. It might just sew up his re-election before they even have a primary.

If they think he isn't tough enough to do this. Just remember the Sunday nite we found about Osama or the Somali pirates that were taken out right after he took office.

If he needs to he will act and get the job done as he should, no doubt about it.

Here is the SCOTUS precedent which is crystal clear on the debt:

PERRY V. UNITED STATES, 294 U. S. 330 (1935)

The government’s contention thus raises a question of far greater importance than the particular claim of the plaintiff. On that reasoning, if the terms of the government’s bond as to the standard of payment can be repudiated, it inevitably follows that the obligation as to the amount to be paid may also be repudiated. The contention necessarily imports that the Congress can disregard the obligations of the government at its discretion, and that, when the government borrows money, the credit of the United States is an illusory pledge…

The Constitution gives to the Congress the power to borrow money on the credit of the United States, an unqualified power, a power vital to the government, upon which in an extremity its very life may depend. The binding quality of the promise of the United States is of the essence of the credit which is so pledged. Having this power to authorize the issue of definite obligations for the payment of money borrowed, the Congress has not been vested with authority to alter or destroy those obligations.

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