© 2011 jbjd
Members of President Obama’s junta have again successfully fomented confusion among the masses by their invocation of the 14th Amendment as affording legal justification to Order our way out of the most current ‘crisis’ involving the debt ceiling. As is the case when considering so much of the man’s conduct; asking whether this is ‘legal’ posits the wrong question. Rather, here is the more accurate inquiry: if he issues an Executive Order to raise the debt ceiling, which order is predicated on the 14th Amendment, in legal terms, is there anything those who object to his conduct, can do about it? And, the answer is, ‘no.’
Basically, issuing an EO is a political move; even if asked to weigh in, the courts, for the most part, will not. http://topics.law.cornell.edu/wex/executive_power All the President has to do is, declare the situation is an “emergency.” http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001621—-000-.html
(For some interesting reading, see John Dean, former Counsel to the President (Nixon):
While our constitution contains no express provision for “emergency” or “crisis” situations, such a provision is not necessary. The U.S. Supreme Court made clear in Ex Parte Milligan, following the Civil War, that “the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence.” Or as one commentator has added, “self-preservation is the first law of any nation.”
So, given that, in general, the President can issue an EO to cover just about anything; and that, generally, there’s nothing anyone can do to stop him; I only looked into the 14th Amendment excuse so as to determine whether this might provide him with the patina of legitimacy that would placate citizens not fond of such unilateral Presidential action, who are otherwise apt to be sufficiently outraged as to register their dissent at the polls. Because so many people, including Nancy Pelosi, Steny Hoyer, Jim Clyburn, Barbara Boxer, and Tom Coburn, purport to think, the Amendment does give the man an ‘honest’ way out.
From the outset, the most pertinent question as to what is the significance of section 4 of the 14th Amendment as it applies to the debt ceiling issue was this:
While the enactment of that section seems incontrovertibly tied to any debt that was incurred relative to the Civil War; can “debt” be defined as occurring outside of the Civil War context?
And, the answer from the Supreme Court is, yes.
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 obligations.
Perry tried to redeem a U.S. bond for an amount of gold to which, under the original terms of the purchase, he was entitled. In the meantime, Congress, with the power to ‘control’ the value of money; had lowered the rate of exchange. Perry, directly impacted by Congress’ act, had standing to sue in federal court. The SCOTUS agreed, Perry was entitled to the full value of his bargain with the U.S.
But, again, it is immaterial to the analysis that 4/14 could presently be used, when the President can issue an EO, anyway.
Interestingly, in reviewing this situation, I came across references to the ‘fact,’ President Truman had used 4/14 to issue an EO that raised the debt ceiling. Here from Jim Clyburn:
“I believe that something like this will bring calm to the American people and will bring needed stability to our financial markets,” Clyburn added, noting that President Harry Truman did it once during his presidency after Congress was unable to pass a bill to raise the debt ceiling.
Rep. Clyburn once again proves, in relation to his daughter, Mignon, a Commissioner on the FCC; that acorn could only have fallen from this tree. If we are to believe his claims of being a college graduate; we can only wonder at the educational standards in the palmetto state. Because President Truman never never never invoked authority under the 14th Amendment to raise the debt limit by Executive Order. Never. However, he did issue an EO to integrate the armed services, citing as his authority, the 14th Amendment.
Adding insult to injury, Mr. Clyburn likened issuing an EO to raise the debt ceiling, to the Emancipation Proclamation! (azgo, thanks for this RCP link.) As usual, he only has a fraction of an idea what he is talking about. The Emancipation Proclamation did not free the slaves; well, not all the slaves, that is. Just those behind Confederate lines. And then, only in those states that hadn’t surrendered to the Union by January. (The EP was issued 4 months earlier, in September.) http://www.pbs.org/wgbh/aia/part4/4p2967.html Of course, the 13th Amendment (and subsequent amendments and Congressional action) solidified the edict of freedom for all.
And it was a comment by Kristen from VA, under this article in RCP, which for me summed up the meaning of 4/14 insofar as it could relate to present day practice viz a viz raising the debt limit by EO.
The 14th Amendment compels Obama to pay interest on EXISTING debt. “The validity of the public debt of the United States, authorized by law, … shall not be questioned.”
It does not permit him to issue NEW debt. That is a power delegated by the States solely to the federal Congress under Article I, Section 8 of the U.S Constitution. “The Congress shall have the Power … To borrow money on the credit of the United States”
Finally, why this omnibus misdirection when it comes to the otherwise rudimentary Presidential authority to issue an EO? ‘Check’ the usual suspect topics, such as high unemployment; low growth; and who profited from the stimulus payoffs and the ‘mandatory purchase of private health insurance’ sleight of hand.