Usurping the Constitution to avoid default?

A number of political pundits, legal experts, and even government officials argue that President Barack Obama should use the 14th Amendment to circumvent the debt ceiling and avoid default. The New York Times reports:

A few days ago, former President Bill Clinton identified a constitutional escape hatch should President Obama and Congress fail to come to terms on a deficit reduction plan before the government hits its borrowing ceiling.

He pointed to an obscure provision in the 14th Amendment, saying he would unilaterally invoke it “without hesitation” to raise the debt ceiling, “and force the courts to stop me.”

On Friday, Mr. Obama rejected the idea, though not in categorical terms.

“I have talked to my lawyers,” Mr. Obama said. “They are not persuaded that that is a winning argument.”

Despite President Obama’s resistance to this idea, some House Democrats are pushing it. Politico reports:

Rep. James Clyburn and a group of House Democrats are urging President Barack Obama to invoke the 14th Amendment to raise the debt ceiling if Congress can’t come up with a satisfactory plan before the Tuesday deadline.

Clyburn, the third-ranking House Democrat, said Wednesday that if the president is delivered a bill to raise the debt ceiling for only a short period of time, he should instead veto it and turn to the phrase in the Constitution that says the validity of the U.S. government’s debt “shall not be questioned.”

According to the New York Times article, “Jack M. Balkin, a law professor at Yale” argues:

“This is largely a political question,” he said. “It is unlikely courts would decide these questions.”

“At the point at which the economy is melting down, who cares what the Supreme Court is going to say?” Professor Balkin said. “It’s the president’s duty to save the Republic.”

Similarly, Eugene Robinson writes at the Washington Post:

It seems to me that definitive action — unilateral, if necessary — to prevent the nation from suffering obvious, imminent, grievous harm is one of the duties any president must perform. Perhaps the most important duty.

This seems all too familiar because it comes straight out of history. In ancient Rome, Sulla was given dictatorial power to restore the republic. By violating Rome’s constitution, Sulla and the Senators that gave him power established a precedent that enabled Julius Caesar to become dictator for life and destroy the republic. Similarly, men like Benito Mussolini and Adolf Hitler also rose to power and expanded their control under the guise of saving the nation.

The Founding Fathers, being students of history, knew that extra-constitutional actions would only undermine the republic in the name of restoring it. As George Washington explained in his farewell address:

If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.

— Michael E. Newton is the author of the highly acclaimed The Path to Tyranny: A History of Free Society’s Descent into Tyranny. His newest book, Angry Mobs and Founding Fathers: The Fight for Control of the American Revolution, was released by Eleftheria Publishing in July and is now available in stores.

One response to “Usurping the Constitution to avoid default?

  1. George Washington was an extraordinary military and political man.

    As the first President of the United States of America (and the only one to be unanimously elected) Washington’s stature in human history is greater than Military-Statesmen such as Bonaparte Napoleon, amongst so many others: ||

    At the height of his powers, George Washington obeyed the Constitutional Rules and did not seek to subvert the two term “check and balance” limit written into the Constitution to protect Americans against the tyranny of “career for life” leaders. Poor health aside, there is plenty of evidence to suggest that “President for Life” would have been Washington’s for the taking. All he had to do was to ask for it.

    So George Washington’s farewell speech urging future generations to respect the wills and the rights of the people, and the constitutional limitations inherent in the referendum amendment provisions, is a powerful precedent for all nations where political powers are delegated and divided under a democratic constitution.

    Recently, Latvia’s President called for a referendum, at which 95% of Latvians voted to dissolve their parliament after widespread concerns of political incompetence and corruption: ||

    That is a far superior approach to the “Constitutional Swindle” that Australians were subjected to on 11.11.1975 under our sabotaged 1901 Constitution. (I use the word “sabotaged” because it was drawn by self-serving federation era lawyers, based on the US Constitution as a template, but with the human rights and the checks and balances stripped out of it, yielding a parliament of House of Representatives and a Senate that is party-political the lap-dog of a feeble Ministry made up of parliamentarians chosen by extra-Constitutional political parties who are in the main subservient to the whims of non-elected career bureaucrats and (to all intents and purposes) hereditary judiciary: ||

    George Washington would no doubt have approved of the Latvian solution to its political impasse, whilst disapproving of the root causes of Latvia’s problems.

    George Washington would no doubt disapprove of the root causes of America’s debt limit problem. But given it is a problem that cannot be ignored, Washington would no doubt approve of the Latvian approach, to upholding the Constitution by seeking the will of the people via the President calling either a referendum or a general election.

    The American Government’s (ie the bureaucrats) debt limit problem is not a sudden problem requiring immediate action, that could conceivably justify any President misusing the 14th Amendment to subvert the Constitution.

    It appears to me, despite much hysteria in much of the mainstream and much of the independent media, all sides of politics, democratic, republican (including tea party) recognize the failings and dangers of blind Keynesian faith in big Government and big budget deficits.

    It appears to me that all sides and factions of American politics are negotiating from a common recognition of the principles that the American Government Debt mountain must be allowed to grow some more in the short term, but in the context of a medium and long term framework in which tax cropping, government spending, and the debt mountain have to be reduced (including a big shift within the Government sector from military to non-military spending, and a big shift within the economy from Government sector to private sector): || ||

    American citizen’s addictions on big government (Australians, Canadians, New Zealanders and British, along with much of the ‘Western’ World nations are even more ‘hooked’ on big government than our American cousins. These addictions, and big government’s addition on bigness, including big taxes, is a multi-generational habit that needs to be carefully and long-term managed as the addiction

    The USA Government debt problem is the result of 235 years of parliaments of all political persuasions approving executives, ministers and bureaucrats requests for unbalanced budgets, budgets of varying levels of deficit, despite also approving huge leaps in tax cropping of citizens (especially over the 4 working generations since the 1920s):!/JamesJohnsonCHR/status/97663588629614592 ||

    An obvious issue is whether the American system of government contains the right institutions and individuals to turn around 70 years of Keynesian fool government growth? The current debates between Capital Hill and Congress are encouraging in this regard. The alternative, that the world’s third largest nation, the 309 million strong citizens of the United States might go the same way as the United Soviet Socials Republic (for much the same reasons) is unthinkable.

    James Johnson
    Independent Federal Candidate for Lalor
    (Australian House of Representatives)
    Solicitor and Barrister of the High Court of Australia

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