Wednesday, October 2, 2013

Another Option For Obama: Ignore Debt Ceiling As Being Unconstitutional

Barkley Rosser of EconoSpeak, citing Henry Aaron (not the baseball great, but rather the economist at Brookings Institution), proposes that President Obama simply ignore the debt ceiling because it conflicts with the president's 14th Amendment duty to pay the nation's debts.

From the US Constitution, 14th Amendment, part 4:
The validity of the public debt of the United States, authorized by law, ... shall not be questioned. ...
Particularly in the case of the ACA, the passage "authorized by law" is significant. The ACA is, in fact, law: it was passed by both houses of Congress, signed by the president, and even vetted by the Supreme Court when it was challenged.

This paragraph in Rosser's post is also straight to the point:
[Henry] Aaron notes that there was a discussion of this conundrum in 2012 in the Columbia Law Review by Neil H. Buchanan and Michael C. Dorf who concluded that indeed there are only three options in this case: 1) do not pay lawful bills, 2) arbitrarily raise taxes, and 3) simply ignore the debt ceiling and proceed as usual. After noting that these are all bad option and technically illegal, with Aaron adding "unconstitutional because violating the law," they conclude that #3 is the least bad of the bad options. Aaron notes that Obama doing this may well lead to him being impeached by the House, but he would not be convicted by the Senate, and it would avoid multiple disasters to the world economy. Aaron also notes that getting rid of the debt ceiling will end the periodic attempts at blackmail by opposition parties trying to achieve ends they could not get through normal legislative processes. All of this is correct, needless to say.

If this is the "least bad" option among bad options, why have I not heard it mentioned elsewhere? Actually, I've heard one vague reference to the president's using the 14th Amendment requirement, but this is the most detail I have seen.

Legal experts out there... comments? Please consider that you have an audience comprising mostly non-lawyers, including me, who nonetheless read carefully and care about the result.

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