Some Democrats have been floating this stylized "constitutional option" for weeks -- even Treasury Secretary Tim Geithner has hinted at it -- and now a former president has offered his qualified endorsement. Clinton's counsel to Obama? If prospects for a debt limit deal still seem dim as the deadline approaches, act unilaterally, and let the courts sort things out later. Just do it:
Former President Bill Clinton said he would raise the nation's legal borrowing limit on his own if he had to and "force the courts to stop me" in order to prevent the United States from defaulting on its debt obligations for the first time in history. Clinton said he thinks President Obama and Republicans on Capitol Hill are going to cut a deal before August 2, "and that's smart."
But "if it came to that," he would raise the debt ceiling using powers granted under the 14th amendment of the Constitution. The amendment says that the validity of the public debt shall not be questioned. "I think the Constitution is clear and I think this idea that the Congress gets to vote twice on whether to pay for [expenditures] it has appropriated is crazy," Clinton said in an interview with The National Memo columnist Joe Conason.
The Huffington Post suggests this little scheme would confound Tea Party conservatives, pitting their fealty to the Constitution against their distaste for both President Obama and ever-higher debts:
"The validity of the public debt of the United States, authorized by law... shall not be questioned," reads the 14th Amendment. By declaring the debt ceiling unconstitutional, the White House could continue to meet its financial obligations, leaving Tea Party-backed Republicans in the difficult position of arguing against the plain wording of the Constitution. Bipartisan negotiators are debating the size of the cuts, now in the trillions, that will come along with raising the debt ceiling.
Not so fast. Former federal judge and Stanford Law professor Michael McConnell tossed a wet blanket on this theory in an essay published earlier this month:
Section Four of the Fourteenth Amendment does not create a back-door method for the Administration to borrow more money without congressional authorization. For Congress to limit the amount of the debt does not “question” the “validity” of the debt that has been “authorized by law.” At most, it means that paying the public debts and pension obligations of the United States, as they become due, has priority over all other spending. Each month, the Treasury takes in about $175 billion in new revenues. These are more than sufficient to pay principal and interest when due, as well as pension obligations. (Social Security, by the way, is not a “pension” obligation within the meaning of this provision. The Supreme Court held in Fleming v. Nestor that Social Security claims are nothing more than promises to pay, not legal obligations to pay.)
It seems highly improbable that the debt dispute would ever come down to this question, but it certainly is refreshing to witness the Left's newfound interest in the "plain wording of the Constitution."