AGAIN with the 14th AMENDMENT!

© 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.”

http://writ.news.findlaw.com/dean/20020607.html)

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 v. UNITED STATES, 294 U.S. 330 (1935),

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.

Read more: http://www.politico.com/news/stories/0711/60038.html#ixzz1TRF8RrrY

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.

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4 Responses to AGAIN with the 14th AMENDMENT!

  1. Al says:

    Nicely written, jbjd! Thanks for clarifying the difference between “Existing” debt and “New” debt, and the respective roles the President and Congress play in managing/impacting the finances of the United States of America.

    On another note, Thanks also for citing the Perry v. United States case, and hat tip to the then presiding SCOTUS who made a fair ruling in the outcome of that case. Fair is fair.

    Al: I tried to respond to other question via email but was the email was marked undeliverable. ADMINISTRATOR

  2. Al says:

    Thank you, jbjd, for making a good faith attempt torespond to my initial question. Appreciate your time. When your busy schedule permits, please reroute your response…Now, back to yourpost, I noted in my reading here that on at least a couple of occasions presidential Executive Orders (EO’s as you would say)were used to preserve the Union and integrate the Armed Forces. However, Should the 14th Amendment be interpreted as guaranteeing to women the right to vote?

    Oh, I’m not against women voting or anything. I even have some women friends, just curious what that legally sharp mind of yours thinks.

    Al: The 14th Amendment cannot be said to guarantee women the right to vote until the 19th Amendment and then, only in those states where men can vote. Because until that point, courts interpreted “rights and privileges” so as to exclude the act of voting, on the basis of an analysis that found citizens uniformly enjoyed certain rights associated with citizenship independent of whether they voted. Of course, after the 19th Amendment, such right was now defined in relation to women as to men, where men had the right to vote.

    However, to answer your question, a new analysis would be required – after the 14th Amendment – to determine whether voting by itself, is now be considered an intrinsic right of citizenship for men, even absent the 19th Amendment. Maybe the courts have already ruled on this. Anyway, if voting (for men) has now been found by the courts to be a “right and privilege” of citizenship then, under the 14th Amendment, this intrinsic right would apply equally to women. ADMINISTRATOR

  3. Al says:

    Well, thank goodness for decent folks like Susan B. Anthony, who advocated for women to be recognized as equals in terms of citizenship, which–of course, sucessfully helped propel the passage of the 19th Amendment–woohoo!

    Kind of hard to believe that our nation has celebrated 235 years of existence, and some of the brighter, more respectful and responsible people in our midst have only been voting for 91yrs. Wouldn’t it be poetic justice that during the actual 100th year anniversary/celebration of the successful passage of the 19th Amendment, a women actually becomes president in 2020?

    Just curious, jbjd, do you think a woman is capable enough to lead from the Oval Office in the White House?

    Al: Overwhelmingly, in my interactions with anonymous bloggers, I take all correspondence addressed to me, on any site, at ‘face value.’ That is, unless otherwise informed, I steer clear of second-guessing the motive of the writer. As a result, I generally answer all questions, applying the same candor and diligence in all circumstances. But I steer clear of responding substantively to questions when evidence exists that would tend to establish the writer has an ulterior motive, evidence which I try to cite at the time I post my refusal to provide a substantive response.

    In the past, I have always responded in good faith to your questions, assuming both that you genuinely wanted to learn more about how our government works and that you thought I could assist in your learning.

    I will not make that mistake again. ADMINISTRATOR

  4. Al says:

    Good Morning, jbjd!

    Listen, on rebuttal, all I want to say for the record is: First, I apologize. Furthermore, it was no assumption on your part that I genuinely enjoyed reading you, and learning more about how our government works (you have mastered a complex subject matter, and there’s no denying that). Moreover, your patience in sharing it with others is admirable…have to respect someone who cares to be fair with “applying the same candor and diligence in all circumstances”–Hat tip.

    Now, given your reference to “evidence exists that would tend to establish the writer has an ulterior motive”, suffice it to say I take from that that you would make a better prosecutor/District-Attorney than a defense attorney–no offense, just seems the noble notion that an individual is always entitled to a fair hearing would be more the norm than the exception. Why you felt I didn’t deserve a fair opportunity to address the existing “evidence” has taken me by surprise. Nevertheless, I do respect you and your wishes. Though I’ll continue to read here, will respectfully refrain from posting out of respect to you. In fairness to the question you posed to me, I’ve sent an answer. All my best, jbjd.

    Al: Here is the telltale question you posed, which gave you away: “Just curious, jbjd, do you think a woman is capable enough to lead from the Oval Office in the White House?” ADMINISTRATOR

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