The Tea Party Ignorati Are Confronted With A New Dilemma: The 14th Amendment, Section. 4.

The Tea Party Ignorati Are Confronted With A New Dilemma: The 14^th Amendment, Section. 4.

Ultimately the President Of These United States Must Act On Behalf Of The People And The Welfare Of This Nation regardless of the political consequences to him/herself. The Constitution and the needs of the people trump any law ever authored in this nation.

With a Republican Party that is genuinely fractured within driven by a demented Teapublican ideology and kept afloat by its corporate sponsors with, no longer, any regard for the personal and financial destruction they are prepared to visit upon the majority of Americans, many of whom are so mentally challenged and mesmerized by the lies and propaganda, that they are suicidal in their flock following opiate, glazed-eye reverence and support.

With a Democratic Party that no longer possesses the intellect of Jefferson, the fight guts of Jackson, the common sense of Truman, the legislative acumen of Lyndon Johnson, the statesmanship of a Stevenson or Humphrey or the vision of a Kennedy; there can be little hope that somehow a meaningful and lasting result can rescued from the flames of the current blind ideological standoff.

This is not about compromise and the well-being of this nation; this contest is about naked power and the players, not about you and me. Some of the players are willing to take this nation, and yes the world, into the abyss of horrific financial disaster, convinced that the financial corporate powers that be will somehow survive and continue to fill their pig troughs of re-election and ego-feeding.

If President Obama must say to the nation, and to the world; “this nation’s Congress has failed its duty due to misfeasance, malfeasance, nonfeasance, corporate corruption, crazed ideology and has found no way to serve those who have elected them, then I shall act on behalf of the people of this nation and for generations yet unborn; I shall regardless of the political onslaught on me that will surly follow, because sometimes you must simply do what is moral and right..so be it!

It is Time To Topple The TeaPublicans and Cage Congressional Corporate Criminals.

The Tea Party Ignorati Are Confronted With A New Dilemma: The 14th Amendment, Section. 4. Ratified on July 28, 1868 the 14th Amendment, the most controversial, is little celebrated and in many quarters it is hated with a vengeance, attacked as having never been adopted, with as much ardor and success as “Birther’s: attacks upon President Obama’s Birth Certificate. In the aftermath of The Civil War amidst the rancor of Reconstruction those who have not given up on re-fighting The Civil War, convinced that “The Old South will rise again” are this day on the attack again claiming the illegitimacy of the Amendment’s adoption and ratification as having been achieved through a process fraught with irregularities and unconstitutional actions. The amendment resolved pre-Civil War questions of African American citizenship by stating that "all persons born or naturalized in the United States...are citizens of the United States and of the state in which they reside." The amendment then reaffirmed the privileges and rights of all citizens, and granted all these citizens the "equal protection of the laws." Though the bigots of this nation, closet or otherwise, would turn back that provisio they more to concern themselves with today in terms of Section 4, to wit: “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims  shall be held illegal and void.” Sub Title: “Obama; If you don’t select “The Crisis we’ll Impeach you; If you employ the 14th Amendment to settle the issue: “We’ll Impeach You!” Enter the current political theater of “The Debt Crisis” and the notion of invoking the 14th Amendment in order to raise the debt ceiling that has gained traction among some Democrats, including former President Bill Clinton, as a means of averting default in case Congress does not reach a debt-limit agreement by Aug. 2, when the Treasury Department says the U.S. faces default. The first screeching from the right is always that the application of certain provisos of The Constitution can only be read/applied to the circumstances in history that gave them birth. I’ll make short shrift of that nonsense. The provision in question, Section 4 of the amendment, was meant to ensure the payment of Union debts after the Civil War and to disavow Confederate ones. But it was written in broader terms. “The validity of the public debt of the United States, authorized by law, including debts incurred for payments of pensions and bounties for services in suppressing insurrection or rebellion,” the critical sentence says, “shall not be questioned.” The Supreme Court has said in passing that those words have outlived the historical moment that gave rise to them. “While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the Civil War,” Chief Justice Charles Evans Hughes wrote for the court in 1935, “its language indicates a broader connotation.” (In Perry v. United States (1935), the Supreme Court ruled that under Section 4 voiding a United States government bond "went beyond the congressional power."[49]) In recent weeks, law professors have been trying to puzzle out the meaning and relevance of the provision. Some have joined Mr. Clinton in saying it allows Mr. Obama to ignore the debt ceiling. Others say it applies only to Congress and only to outright default on existing debts. Still others say the president may do what he wants in an emergency, with or without the authority of the 14th Amendment. The words of the provision are in important ways quite vague. “Nobody would argue,” said Sanford Levinson, a law professor at the University of Texas, “that Section 4 is clear in its meaning, other than at the time everyone thought that the South, if they ever got back in control, would not pay Civil War debt.” But Jack M. Balkin, a law professor at Yale, said it was possible to infer a broader principle. “You’re not supposed to hold the validity of the public debt hostage to achieve political ends,” Mr. Balkin said. He added, though, that “Section 4 is a fail-safe that only comes into operation when everything else is exhausted.” Mr. Obama’s statement largely dismissing the possibility of invoking the provision may have had a strategic element to it. A deficit reduction deal would seem to be more likely, after all, if both sides thought there was no alternative but economic chaos. Mr. Obama’s reference to “a winning argument” suggested the likelihood that the courts would weigh in if he took unilateral action. But that is not certain. “This is not a circumstance,” said Laurence H. Tribe, a law professor at Harvard, “in which the courts have any plausible point of entry.” Professor Balkin agreed. “This is largely a political question,” he said. “It is unlikely courts would decide these questions.” Some law professors have put forward possible legal claims that might overcome threshold requirements for lawsuits, like the one in which plaintiffs show that they have been directly injured and so have standing to sue. “It’s unthinkable,” Professor Tribe responded, “that the courts would allow a gimmicky lawsuit to proceed.” The president, moreover, can move quickly, but court cases take time. “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.” Another possible reaction to unilateral action from Mr. Obama is impeachment. Professor Tribe said that was “not politically a very plausible scenario.” Professor Levinson was less certain. Impeachment by the House of Representatives “seems to me quite likely.” But, he added, “it is also literally unimaginable that the Senate would convict.” A third possible response is what some law professors call “popular constitutionalism.” The meaning of the Constitution, these professors say, is in the end what the public believes it to be. The president and members of Congress may thus pay a political price for taking stands at odds with what the public understands to be their constitutional obligations. No, this is Section Four of the Fourteenth Amendment, which says that "[t]he validity of the public debt of the United States, authorized by law . . .shall not be questioned." The Tea Party Ignorati Are Confronted With A New Dilemma. We all know that they are devoted to a strict interpretation of, and adherence to, the Constitution of the United States. We also know that they are dead-set against any increase in the current debt ceiling. Never mind that the increase in the debt ceiling is to pay for debts already incurred. These Two Virtually Religious Convictions Are Turning Out To Be Directly Contradictory. WASHINGTON -- Growing increasingly pessimistic about the prospects for a deal that would raise the debt ceiling, Democratic senators are revisiting a solution to the crisis that rests on a simple proposition: The debt ceiling itself is unconstitutional. "The validity of the public debt of the United States, authorized by law... shall not be questioned," reads the 14th Amendment. "This is an issue that's been raised in some private debate between senators as to whether in fact we can default, or whether that provision of the Constitution can be held up as preventing default," Sen. Chris Coons (D-Del.), an attorney, told The Huffington Post . "I don't think, as of a couple weeks ago, when this was first raised, it was seen as a pressing option. But I'll tell you that it's going to get a pretty strong second look as a way of saying, 'Is there some way to save us from ourselves?'" a June 28 report in the Huffington Post 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. Sen. Patty Murray (D-Wash.), head of the Democratic Senatorial Campaign Committee, said that the constitutional solution puts the question in its proper context -- that the debate is over paying past debts, not over future spending. "The way everybody talks about this is that we need to raise the debt ceiling. What we're really saying is, 'We have to pay our bills,'" Murray said. The 14th Amendment approach is "fascinating," she added. The White House referred questions on the constitutionality of the debt ceiling to the Treasury Department. Treasury declined to comment. VALIDITY OF PUBLIC DEBT Section 4 confirmed the legitimacy of all United States public debt appropriated by the Congress. It also confirmed that neither the United States nor any state would pay for the loss of slaves or debts that had been incurred by the Confederacy. For example, several English and French banks had lent money to the South during the war. In Perry v. United States (1935), the Supreme Court ruled that under Section 4 voiding a United States government bond "went beyond the congressional power." House Democrats to Obama: Raise debt limit by invoking 14th Amendment if necessary By Felicia Sonmez A trio of House Democratic leaders is calling on President Obama to move unilaterally to raise the country’s debt ceiling next week if Congress passes anything less than a long-term extension of the federal borrowing limit. House Assistant Democratic Leader James Clyburn (S.C.), Democratic Caucus Chairman John Larson (Conn.) and Caucus Vice-Chairman Xavier Becerra (Calif.) said after a closed-door caucus meeting Wednesday that they are calling on Obama both to veto a short-term deal and sign an executive order invoking the Constitution’s 14th Amendment to avert default on Aug. 2. “I would say to the President that if that’s what lands on his desk – a short term lifting of the debt ceiling -- he should put it on his desk next to an executive order that he will have drawn up,” Clyburn told reporters at the Capitol. “And with the same pen that he vetoes that short term debt ceiling extension, he should sign an executive order invoking the Fourteenth Amendment.” The notion of invoking the 14th Amendment in order to raise the debt ceiling has gained traction among some Democrats, including former President Bill Clinton, as a means of averting default in case Congress does not reach a debt-limit agreement by Aug. 2, when the Treasury Department says the U.S. faces default. But the legality of such a move has been questioned. Clyburn said Wednesday that he was “convinced that whatever discussions about the legality of that can continue” but that such an action by Obama was needed in order to “bring calm to the American people” as well as stability to global financial markets. U.S. stocks fell sharply Wednesday, as concern grew over the stalemate in Washington. In addition to the three Democratic leaders, several rank-and-file Democrats also came out in favor of the 14th-Amendment approach. Democratic Reps. Eliot Engel (N.Y.), Jerry Nadler (N.Y.), John Garamendi (Calif.) and Del. Donna Christensen (Virgin Islands) and several other Democrats plan to hold a news conference at 1 p.m. Thursday urging Obama to pursue such an approach. The Democrats planned to hold their event at near the Washington Monument -- at the corner of 14th Streets and Constitution Ave. in Northwest Washington. The White House has repeatedly dismissed the 14th Amendment argument, and White House Press Secretary Jay Carney on Wednesday reiterated Obama’s opposition to such a move. “Our position hasn’t changed,” Carney told reporters at the daily briefing. “There are no off-ramps. There’s no way around this. There’s no escape. And, you know, having an esoteric constitutional argument won’t resolve the fact that our borrowing authority is due to expire on Aug. 2.” He added that “only Congress has the legal authority to extend that borrowing authority.” “That’s our position,” Carney said. “And the president stood here and told you; we consulted to see what this was about, but it’s just -- you know, it is not an option.” WASHINGTON -- Sen. Chuck Grassley (R-Iowa) said on Thursday that the Constitution may trump the debt ceiling, allowing the administration a way out of the default impasse. Negotiators are considering gutting the social safety net in exchange for a vote to lift the debt ceiling. Grassley, in a conference call with local reporters, said that there may be another way out. "There's one thing that hasn't been talked about yet, and I haven't checked on the constitutionality of it -- and I read the Constitution, but I don't remember reading this -- but in the 14th amendment, there's something that says something about the debt of the United States government shall be honored," Grassley said, according to a recording of the call. "The 14th Amendment includes a public debt clause that insists the obligations of the government 'shall not be questioned.'" "So people are looking at the fact that maybe the debt ceiling bill that Congress presumably has to pass for the government to borrow more maybe is contrary to that constitutional provision, and that the administration may take out [loans] on their own -- just to borrow money -- and say that they can ignore the law," he said. Grassley said that he was personally supportive of the debt ceiling, because it focuses attention on spending, but that if its existence was unconstitutional, there was nothing he or his colleagues could do. "I think it's a discipline that Congress uses effectively from time to time, maybe not to cut down on the amount of spending but to have a refresher course," he said. "It's a good discipline, so it bothers me if the Constitution provision would trump it, but that would be up to the courts to say. But who's going to argue against the Constitution? It's the basis of our government; it's the law of our land, and everybody has to abide by it." "The Constitution trumps the law, obviously," he said. Some House Republicans, meanwhile, are threatening to impeach the president if he goes the 14th Amendment route. Why the act of unilaterally increasing the debt limit by invoking an obscure section of the 14th Amendment could leave the President facing impeachment. As reported Wednesday, July 27, 2011, in an article by Jennifer Epstein of Politico.com, third-ranked House Democratic, James E. Clyburn of South Carolina joined with other House Democrats in urging President Obama to end the debt ceiling stalemate by invoking an obscure section of the 14th Amendment. The group called on the president to unilaterally raise the limit by executive order if Congress does not authorize raising it before the August 2nd deadline. The premise is that a provision contained in the 14th Amendment that speaks to the legitimacy of the public debt could authorize the president to circumvent powers specifically reserved to legislative branch under circumstances like the current debt cap impasse. The scheme has been circulating in Washington since former President Bill Clinton made headlines on July 19 when he told The National Memo that "he would invoke the 14th Amendment to raise the national debt ceiling if Congress won't act," were he in President Obama's situation, and would "force the courts to stop me." Administration's Position On Using 14th Amendment When asked by the media last week about invoking the 14th Amendment and raising the debt limit himself, Obama stated, "talked to my lawyers" and "they are not persuaded that that is a winning argument." White House press secretary Jay Carney went even further in ruling out the option. He went on record during an afternoon press briefing held July 27, "You know, having an esoteric constitutional argument won’t reduce the fact that the borrowing authority is due to expire on August 2nd and Congress has the legal authority and only Congress has the legal authority to extend that borrowing authority." Carney added, "The president stood here and told you. We consulted to see what this was about, but this is not an option." However, Tim Geithner sent a different message…. WASHINGTON -- At a briefing with reporters on Wednesday, President Obama was asked whether he believed that the debt ceiling was constitutional or whether the 14th Amendment required the government to meet all of its obligations regardless of the debt-limit statute. Obama dodged the question. "I'm not a Supreme Court Justice, so I'm not going to put my constitutional law professor hat on here," he said about the debt ceiling and a question on the war in Libya. Treasury Secretary Tim Geithner, however, is less afraid of wearing that hat. At a Politico Playbook breakfast on May 25, Geithner was asked by host Mike Allen about the negotiations over default and the debt ceiling. "I think there are some people who are pretending not to understand it, who think there's leverage for them in threatening a default," Geithner said. "I don't understand it as a negotiating position. I mean really think about it, you're going to say that-- can I read you the 14th amendment?" Geithner whipped out his handy pocket-sized Constitution. Allen tried to brush it aside. "We'll stipulate the 14th Amendment," he said. "No, I want to read this one thing," Geithner insisted. "It's paper clipped!" Allen observed, noting that Geithner's copy of the Constitution was clipped so that it would open directly to the passage in question. And Then Geithner Did a Reverse Run… Geithner Rules Out Using 14th Amendment July 8, 2011 By GoozNews The last paragraph in today’s debt ceiling negotiations story in today’s Times: In addition to his warnings about the cost of a default, officials said, Mr. Geithner told the lawmakers the White House did not believe it had the authority, under the Constitution, to continue issuing debt if it reached the debt ceiling. Nobody in the room disputed Mr. Geithner’s bleak assessment, the officials said. Hmm. That’s a change of view. I wonder why he read the section of the 14th amendment aloud at an Atlantic Magazine Newseum forum on jobs and the economy a month ago. For those not following this issue, it was passed after the Civil War to ensure that debts incurred by the federal government were never repudiated, and that debts incurred by the Confederacy were never paid.  Sounds like the administration’s lawyers have reviewed the issue and decided not to go there. I’ve been reviewing some of the blogs that have been writing on this subect, in particular, this post by Jack Balkin, a law professor at Yale University. If I’m reading it properly, here’s how a constitutional crisis provoked by failure to raise the debt ceiling would play out: President Obama, citing the 14th amendment section that pledges the U.S. to meet all its debts and obligations, ignores Congress’ failure to lift the debt ceiling and resumes issuing new bonds above the legislated $14.3 trillion limit. He tells the nation that the constitution is a higher law than any statute passed by Congress, and in any case, he is prohibited by a previous Supreme Court decision to exercise “line item” veto authority to pick and choose which among spending programs already authorized by Congress he will pay for. Congress still refuses to lift the debt ceiling. The House, the seat of intransigence, accurately determines that the President has broken the law, and votes a bill of impeachment. It passes on a party-line vote. An impeachment trial commences in the Senate in September. It votes against impeachment. The Supreme Court in its fall session takes up the 14th amendment case, putting the Roberts court in a position, if it so chooses, to call into question 150 years of jurisprudence around the cornerstone Civil War amendment. One can almost hear the pin drop in the room after the president told Geithner, “Tim, I think we had better not go there.” In recent weeks, law professors have been trying to puzzle out the meaning and relevance of the provision. Some have joined Mr. Clinton in saying it allows Mr. Obama to ignore the debt ceiling. Others say it applies only to Congress and only to outright default on existing debts. Still others say the president may do what he wants in an emergency, with or without the authority of the 14th Amendment. For more than one year, we have been warned about the danger of a debt default resulting from Congress’s failure to raise the debt limit in a timely manner. Now, we are getting close to the 11th hour and it is clear that there are many Republicans willing to risk a default to achieve their ideological goal of reducing government spending. Although THEY SAY they are motivated by a concern for the nation’s finances, their total unwillingness to consider so much as $1 of tax increase proves that such claims are hollow. Time is running out and neat, comfortable options for resolution vanish by the hour. What options really remain? Let us assume no legislative solution is achieved on or about August 2. Since the ultimate crisis may come during Congress’s August recess, the Treasury may have no recourse except to consider radical options for preventing default. One idea comes from Peterson Institute economist Joseph Gagnon, a former Federal Reserve official. He suggests that the Federal Reserve could temporarily buy some of the Treasury’s $300 billion stock of gold. This would allow the Fed to create cash that the Treasury could use to pay its bills until the debt limit is increased, at which time Treasury could simply buy it back. It would be a purely paper transaction that would have no real effect on the price of gold or anything else. The Fed could simultaneously sell an equal amount of securities from its portfolio to prevent the money supply from rising more than it desires. A more radical solution, Plan B, would be to simply disregard the debt limit altogether on constitutional grounds, in The Fiscal Times on April 29. University of Baltimore law professor Garrett Epps made a similar suggestion in The Atlantic on May 4. The essence of the argument involves section 4 of the Fourteenth Amendment to the Constitution, which reads: “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” In my view and that of Prof. Epps, this means that the president would have constitutional authority to take extraordinary measures to protect the public credit and prevent a debt default even if it means disregarding the debt limit, which is statutory law subordinate to the Constitution. I now feel even more strongly that the Fourteenth Amendment trumps the debt limit. There is strong support for this position in an article by George Washington University law professor Michael Abramowicz. Writing in the Tulsa Law Journal (“Beyond Balanced Budgets, Fourteenth Amendment Style,” 33:2, Winter 1997, pp. 561-612), he concludes that any government action “making uncertain whether or not a debt will be honored is unconstitutional.” As Abramowicz explains: “A debt does not become valid or invalid only at the moment payment is due. A debt’s validity may be assessed at any time, and a debt is valid only if the law provides that it will be honored. Therefore, a requirement that the government not question a debt’s validity does not kick in only once the time comes for the government to make a payment on the debt. Rather, the duty not to question is a continuous one. If as a result of government actions, a debt will not be paid absent future governmental action, that debt is effectively invalid. The high level of generality recognizes that instead of referring to payment of debts, the Clause bans government action at any time that affects the validity of debt instruments…. Moreover, there is no such thing as a valid debt that will nonetheless not be honored. This means that the very existence of the debt limit is unconstitutional because it calls into question the validity of the debt. So would any other provision of law. That is a key reason why Congress created a permanent appropriation for interest payments at the same time that the Fourteenth Amendment was debated.  Previously, Congress had to pass annual appropriations for interest. Of course, if the administration takes my position and ignores the debt limit to prevent a default on constitutional grounds, there are certainly those who would claim that it has violated the law.  However, Jonathan Zasloff, a professor of law at UCLA, raises an interesting question: who would have standing to enjoin the administration’s action? The Justice Department would certainly not sue the president or the Treasury secretary under these circumstances, so who would? Zasloff thinks only the Congress as a whole would have standing, which means that both the House and Senate would have to pass a joint resolution condemning the president’s action and authorizing a law suit, something that would be very unlikely given Democratic control of the Senate. STANDING Assuming that Obama goes through with declaring the debt limit unconstitutional and exceeds the ceiling, who would have standing to sue him in court? Regular taxpayers? Members of Congress? Probably nobody. It is very unlikely that this ever would reach a court. If a default does occur, though, then the bondholders might be able to sue for damages. Is it true or false that Congress could not challenge Presidential Commander in Chief Constitutional actions under Section 4 of the 14th Amendment unless both House and Senate agreed to go to Court and that no one else has standing to do so? Those is, unless the Senate and House jointly challenged the President in Court (not one legislative body acting alone), Congress’ only remedy is ganshing teeth or seek to impeach. The debt ceiling should never have been attached to the policy debate over spending and taxes. If the wealthiest couple in the world was arguing about spending and taxes, and one of them threatened to not pay the mortgage, though they had every capacity to pay it, you would say that the threatening spouse was unhinged. You would tell them to pay for their obligations and figure out their fiscal mess separately. http://www.thefiscaltimes.com/Policy-Politics/Big-Decisions/Debt-Ceiling.aspx A historical document about the impeachment process, "Constitutional Grounds for Presidential Impeachment, Provisions in the Constitution that are Relevant to Impeachment and Past Impeachment Inquiries" provides the details behind presidential impeachment proceedings including that of President Andrew Johnson, the first president to face impeachment. Noting that Johnson's impeachment stemmed from "a bitter partisan struggle over the implementation of Reconstruction in the South following the Civil War," the document goes on to say that his impeachment "rested on allegations that he had exceeded the power of his office and had failed to respect the prerogatives of Congress." Using the Johnson impeachment as historical precedent, it is quite easy to infer that if President Obama chose to act on the suspect advice from members of his party to unilaterally boost the public debt limit based on invocation of the 14th Amendment, he might very well find himself facing impeachment under eerily similar circumstances and based on strikingly similar allegations as those of the Andrew Johnson impeachment. It's doubtful that the president would be willing to risk his presidency on such a thin and indefensible argument. http://caselaw.lp.findlaw.com/data/constitution/article01/26.html “You’re not supposed to hold the validity of the public debt hostage to achieve political ends,” Mr. Balkin said. He added, though, that “Section 4 is a fail-safe that only comes into operation when everything else is exhausted.”

It’s come to this: The White House is making tentative plans for a Friday evening briefing detailing which of the government’s bills will be paid and which will not come Aug. 2 if Democrats and Republicans fail to find common ground on the debt ceiling. ABC’s Jake Tapper reports this morning that, “Officials are most concerned about paying the interest on the existing debt, since failure to do so would result in default and almost certain immediate market panic, as well as questions about how Treasury would be able to roll over a pre-existing $87 billion in debt that comes due next week. After that -- a list of priorities, not all of which that can be met. Social Security checks? Medicare?  Government workers? Pentagon contractors? Troops' salaries? The FBI?” http://abcn.ws/qjKQcx Such a briefing, Tapper notes, would take place after the markets close (4 p.m.) on Friday. Meanwhile, the House of Representatives is preparing today for a vote on Speaker John Boehner’s debt-limit plan after Boehner instructed his members yesterday -- especially those freshman Tea Party holdouts -- to “get your ass in line” behind it. Last-Ditch 14th Amendment Plan Gains Momentum As Debt Clock Ticks As fears intensify that Congress will not pass a debt limit increase in time to avoid default, some Democrats are pulling out their pocket Constitutions to find a back-up plan. Assistant Minority Leader Rep. James Clyburn, R-S.C., said today that if a long-term deal is not struck by Aug. 2, President Obama should sign an executive order raising the debt ceiling without Congressional approval. He said this action would be justified because of a section in the 14th Amendment that states that “the validity of the public debt ... shall not be questioned.” "I am convinced that whatever discussions about the legality of that can continue," Clyburn said. "But I believe that something like this will bring calm to the American people, and will bring needed stability to our financial markets." The argument is that a default would put the “validity of the public debt” in jeopardy, thus violating the 14th Amendment. And since the president took a vow to “preserve, protect and defend the Constitution” it would then be his responsibility to ensure that the country does not default. But constitutional scholars are divided over whether the amendment would, in fact, justify the president to unilaterally take action on the debt ceiling. Laurence Tribe, a constitutional scholar at Harvard University and one of President Obama’s former professors, told ABC News earlier this month that the 14th Amendment must be upheld by Congress, not by the president. Read more about the 14th Amendment debate here. “It’s a tempting [argument], but I think it’s fundamentally fallacious because it assumes that the executive branch is the branch of government that has the ability to enforce the 14th Amendment. Section 5 makes clear it is Congress that has that power,” Tribe said. Obama seems to agree. At his University of Maryland town hall July 22, the president said he does not believe he could use the 14th Amendment to raise the debt ceiling, even if there is no agreement by Aug. 3. "I have talked to my lawyers," he said. "They are not persuaded that that is a winning argument." But both the president and the Treasury Department have stopped short of saying Obama will not invoke the 14th Amendment if worse comes to worst. The idea is tempting, at least, to the president. “Believe me, the idea of doing things on my own is very tempting,” Obama said Monday at the annual meeting of the National Council of La Raza. Treasury Secretary Timothy Geithner told ABC News' Christiane Amanpour on Sunday that it is “not a workable option to limit the damage to the American people that would come from Congress to avoid a default crisis." If the president does decide to use the amendment, House Democratic Caucus Chairman John Larson said today that “his caucus is prepared to stand behind him.” “We have to have a fail-safe mechanism," said Larson, D-Conn. "We believe that fail-safe mechanism is the 14th Amendment and the president of the United States." Some argue that raising the debt ceiling without congressionally-approved deficit reductions attached would not go far enough to avoid financial calamity. In his testimony before the House Financial Services Committee today, the president of the credit rating agency Standard & Poor, Deven Sharma, said, "The more important issue is the long-term growth rate of the debt.” Tribe also argued that if Obama went it alone, “It’s anybody’s guess how much confidence creditors around the world would have that those debts would be repaid.” “I think it is something that should be avoided at all costs,” Tribe said.  “The idea of violating the Constitution without the guarantee that it would solve the economic crisis seems particularly unwise.” The Associated Press contributed to this report. Will U.S. Default? $4.8 Billion Investment Says Yes McCain Blasts Tea Party for 'Foolish' Demands in Debt Debate Budget Talks Collapse over Demands to Raise Taxes A Way Out for Dems on Debt Ceiling Talks Debt Ceiling: A Threat to Corporate America The Debt Ceiling Might Be Unconstitutional, But Now Is Not The Time To Find Out By Ezra Klein ({I’m certain that I don’t agree with him on hist last point, considering that gridlock is the PATH to a sustainable budget future, not an impediment to it. If there’s no solution, the deficit problem takes care of itself. So a court case that affirms the executive’s right to rack up more debt without strings attached would put the political system in a healing kind of gridlock that brings the budget into primary balance. I don’t see the problem. But stepping back even more, the issue is not really whether or not to invoke this Constitutional option; it’s whether to do it as an alternative. An alternative to what? An alternative to this:} The Huffington Post reports that some Senate Democrats are arguing that the debt ceiling is unconstitutional and can potentially just be ignored. The New Republic called a few left-leaning legal scholars and budget wonks to flesh out the idea. As a legal theory, that might well be correct, but as a practical solution to the debt-ceiling standoff, it shouldn’t be tried. If Congress blows past the debt ceiling and the Treasury Department simply continues borrowing to pay our debts, there’d be two primary obstacles to anyone trying to sue the administration: standing and the Constitution. Standing — essentially, the right to sue — is tough because of a 1998 decision in which Chief Justice William Rehnquist, writing for the majority, threw out a suit brought by a group of congressmen alleging that the line-item veto reduced their power. Rehnquist said that the policy did not harm them in a “personal and individual way,” and so they didn’t have standing to sue. There’s no obvious reason a suit over the debt limit would fare any better. Then there’s the Constitution itself. Section Four says “The validity of the public debt of the United States, authorized by law … shall not be questioned.” Bruce Bartlett argues, I think quite convincingly, that this could be read to invalidate any congressional actions — like the debt ceiling — that call the security of our debt into question. Whether the conservative Supreme Court would read it that way is, of course, a whole other question. But back the conversation up for a moment. The danger of the debt limit isn’t that America won’t eventually make good on its debts. We have more than enough money to cover our bills, and the market knows that perfectly well. It’s that the fight over paying our debt will be so brutal, so irresponsible, and so unsettling that the market will reevaluate the faith it puts in America’s political system to pay our bills, reduce our deficit and make sound economic decisions in the years to come. Put slightly differently, the danger isn’t that investors never get paid, but that the way they get paid makes them lose faith in the country’s management, which in turn forces the entire financial system to reevaluate the safety of a bedrock asset — which is essentially exactly what happened in the last financial crisis, but on a much larger scale. Layering a constitutional crisis over political gridlock may work in the sense that the Obama administration will win the court case. But it’ll fail terribly in terms of sustaining the market’s confidence in our political system. That’s a step toward total breakdown, not evidence that agreement can eventually be reached and economic renewal achieved. The debt ceiling needs to be resolved in a way that assures investors that America’s other economic problems will be resolved, too. A court case that affirms the executive’s right to rack up more debt and the political system’s inability to agree on a reasonable deficit reduction package is the precise opposite of that. You know those old Looney Tunes where the Roadrunner and Wile E. Coyote would both run across an abyss, but the Roadrunner would get to the other side, while Wile E. would look down and fall? That’s sort of where we are with the markets. Right now, they’re confident that we’ll get everything under control, even though our finances are a mess and our political system is as paralyzed and gridlocked as it’s been in modern times. They’re the Roadrunner, in other words. In that context, the debt ceiling isn’t just about paying our bills. It’s about keeping the market from looking down. WHILE ALL THIS IS TRUE "The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States...to borrow money on the credit of the United States..." Congress alone has the legal authority to extend the borrowing authority of the federal government. If the president chose to raise the debt limit on his own by use of executive order he would be guilty of exceeding the constitutional powers of the executive branch and of usurping the powers reserved to Congress. The president, moreover, can move quickly, but court cases take time. “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.” Another possible reaction to unilateral action from Mr. Obama is impeachment. Professor Tribe said that was “not politically a very plausible scenario.” Professor Levinson was less certain. Impeachment by the House of Representatives “seems to me quite likely.” But, he added, “it is also literally unimaginable that the Senate would convict.” A third possible response is what some law professors call “popular constitutionalism.” The meaning of the Constitution, these professors say, is in the end what the public believes it to be. The president and members of Congress may thus pay a political price for taking stands at odds with what the public understands to be their constitutional obligations. No, this is Section Four of the Fourteenth Amendment, which says that "[t]he validity of the public debt of the United States, authorized by law . . .shall not be questioned." It goes without saying that provoking a constitutional crisis over the debt limit is a bad idea, but a debt crisis would be worse. At a minimum, the Fourteenth Amendment greatly strengthens the president’s hand in getting the debt limit increased in a timely matter. He should not be afraid to use it. As for the consequences, But as a matter of common sense, a delay in raising the debt limit may have malign results even if the United States does not technically default on bond-interest payments. READ David Kennedy's Freedom from Fear: The American People in Depression and War, 1929-1945, and you will not sleep well. The current year seems uncomfortably like 1931, when some brave forecasters still nourished hope that recovery was underway.  Shocks to confidence in the nation and the world kept coming, however, until by early 1933 severe recession had become unparalleled catastrophe. Since 2008, we've heard several times that recovery has begun; but events around the world--European debt crises, Middle East revolutions, the earthquake, tsunami and meltdown in Japan, and now political infighting in Washington--keep intervening to strangle it.   So it seems like a bad time for Congressional Republicans to point a gun at the national credit rating and scream, "One step and I'll shoot!"  If the debt limit increase is snarled, confidence in our bonds may crater even if Treasury is able to find a temporary way to maintain the interest payments.  If the world no longer feels solid about U.S. debt, the consequences could be as bad as 1932-33. That's where the good old text of the Constitution comes in--the actual text, not the mythical snippets that many Americans misremember from eighth-grade civics, and not the truncated redaction that too many lawyers, alas, learn in their first-year Con Law class. Section Four of the Fourteenth Amendment states, at its outset, that "[t]he validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned." This section was inserted into the Amendment because of a very real concern that Southern political leaders, and their Northern allies, would gain the upper hand in Congress in the 1866 or 1868 elections and vote to repudiate the national debt.  The Lincoln administration had borrowed freely to finance the war machine. As Reconstruction dawned, white Southerners complained bitterly that they would now be taxed to repay the funds that had been borrowed to defeat their cause. "What, ruin us, and then make us help pay the cost of our own whipping?" one asked a Northern journalist in 1865. "I reckon not."   Southerners were used to having their way in Congress--they had dominated the institution from 1787 until secession in 1861--and many believed that when their representatives arrived in House and Senate, they would be able to tear up the nation's IOUs.   Section Four was the response; its language is extraordinary. First, it does not simply say that the national debt must be paid; it says that its "validity ... shall not be questioned." Only one other section of the Constitution--the Thirteenth Amendment's proclamation that "[n]either slavery nor involuntary servitude ... shall exist within the United States, or any place subject to their jurisdiction"--is as unqualified and sweeping. Second, it suggests a broad definition of the national debt: "...including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion." From this language, it's not hard to argue that the Constitution places both payments on the debt and payments owed to groups like Social Security recipients--pensioners, that is--above the vagaries of Congressional politics. These debts have to be paid, the argument would be, in full, on time, without question.  If Congress won't pay them, then the executive must. On the other hand, the language could be seen as simply forbidding outright repudiation, not  temporary default. Default on U.S. bonds would, in this analysis, not dispute the "validity" of the debt; it would simply delay repayment. But remember the strict language. Suppose you lend $10,000 to your cousin. When the debt comes due, he says, "Listen, I'm good for the money, but I'm a little short right now. Trust me, I will get it to you sooner or later." That's not repudiation. But on the other hand, you might think the validity was now at least being "questioned."   For the Obama administration to adopt the broad reading of Section Four would be bold (and I hasten to say I don't expect them to do it); but it would hardly be unusual in the recent discourse of presidential power--especially the Republican party's theory of the presidency. The Speech Obama Could Give: 'The Constitution Forbids Default' Imagining a presidential address confronting Republicans who want to risk the nation's credit for political reasons My fellow Americans, I am speaking to you tonight to let you know the steps I have taken to ensure that America lives up to its obligations during the current political crisis. As you know, the continuing recession and the pressures of running two wars have made it necessary for the government to borrow money on the world market in order to meet our commitments at home and abroad, see to it that our armed forces receive their pay and equipment, and fulfill our obligations to the retired, the unemployed, and those in need of medical care. Unfortunately, Congress has not passed an increase in the statutory debt limit as the deadline approaches. Members of the House majority have informed me that they will not agree to an increase in the debt limit without imposing restrictions on the government budget that will threaten our nation's recovery, imperil the national defense, and cause widespread suffering. I have offered to negotiate in good faith, as I did during the budget crisis, but they have shown no interest in real negotiations. As of midnight tonight, the government's statutory borrowing authority will be exhausted. If no measures are taken, the government must either default on its bonded indebtedness or on its obligations to seniors on Social Security, to unemployed workers dependent on federal insurance payments, and to American service personnel serving in areas of armed conflict. That is what the Framers intended: to set the debt obligations of our country beyond the reach of Congressional meddling. For this reason, I have ordered that Secretary of the Treasury Timothy Geithner immediately begin issuing binding debt instruments on the world market sufficient to cover all the current obligations of the United States government, even in default of Congressional action to meet those obligations. I take this action to fulfill the oath I took as president of the United States. The Constitution explicitly requires me, under my duty to "take care that the laws be faithfully executed," to meet and pay all debts of the United States. This requirement is absolute. It is contained in Section Four of the Fourteenth Amendment, which directs, in no uncertain terms, that "the validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned." This provision makes clear that both the monies our nation owes to bondholders, and the sums promised in legislation to those receiving pensions set by law from the federal government, must be paid regardless of the political whims of the current congressional majority. All obligations that the nation has undertaken by drawing on its credit must at all times be rendered current. As a former professor of constitutional law, I want to explain to you the origin of Section Four. After the Civil War, political leaders in the defeated South announced their intention of resuming their seats in Congress and of using their power--augmented by increased Congressional representation for the freed slaves--to compel the federal government either to pay off all debts of the Confederacy or to default on the national debt which had been borrowed to finance the Union war effort. They also intended to present to the nation a huge bill for what they claimed was the value of the slaves that had been freed by the Emancipation Proclamation and the Thirteenth Amendment. For this reason, the Framers of the Fourteenth Amendment wrote into our fundamental law an absolute prohibition against defaulting on the national debt. Its language establishes a complete firewall against the misuse of governmental power by one political faction to get its way by wrecking the public credit. Only one other provision of the Constitution--the Thirteenth Amendment's categorical prohibition on slavery--is as rigid as the language of Section Four. That language is not binding only on Congress, but on all parts of the government, including the executive branch. For nearly a century and a half, the absolute language of the Fourteenth Amendment was not even questioned. I regret to say, however, that today our nation faces exactly the threat Section Four was designed to guard against. A vocal and determined political minority--what our great Founder James Madison would have called a "faction"--is determined to use its dominance in one House of Congress as a weapon to circumvent the democratic process. It wants to find a back-door way to undo programs and policies that have been democratically enacted over a 75-year period. It wants to impose a narrow vision of government and America that has been rejected by our people repeatedly over the same period. This determined minority is now prepared to defy the Constitution to get its way. Some of its voices have begun to say that national default would be welcome, even if it wrecks our international credit and leads the U.S. to default not only on its bonded obligations but on the debts due to its armed forces in the field--debts that are even more sacred than "pensions and bounties for services" already performed by veterans in previous wars. Indeed, I am convinced that the only reason why the framers of Section Four did not explicitly include "payments to military personnel in the field during congressionally authorized military action" is that it was literally unthinkable even to the most hardened partisans among them that any faction within the United States Congress would countenance cutting off payments to those who carry our flag in foreign nations under hostile fire. Some may ask why I do not simply use my executive authority to juggle accounts and cook the federal books in order to pay the most pressing obligations while I implore this determined minority to honor their oaths to uphold the Constitution. I do not have the luxury of partial or halfhearted compliance with the absolute command of our nation's fundamental law. Section Four does not say that the national debt "shall be paid sooner or later," or "shall be stretched out as long as possible," or "shall be paid in some areas but not in others." It also does not say "shall not be questioned unless Congress really wants to." As long as I remain president, the national debt of the United States shall not be questioned. It says it "shall not be questioned." The national debt must be paid in full, on time, regardless of any political division within our Congress. That is what the Framers intended: to set the debt obligations of our country beyond the reach of Congressional meddling. Those obligations will not be questioned as long as I am president of the United States. This action requires me to authorize borrowing that is not in conformity with the debt-limit statute. But no congressional statute can command or permit our government to violate the Constitution. I find the debt limit, to the extent that it could be construed to require national default on any obligation of our nation, to be in the words of the great chief justice John Marshall, repugnant to the Constitution and thus void. I regret that the intransigence of a small minority of members of Congress have forced our nation into this situation. I know that some of these same political leaders will now charge me with violating the Constitution -- the same Constitution that they apparently have no desire either to read or to follow. If they truly believe this to be true, I challenge them to bring Articles of Impeachment against me. The charge should be that I did what was necessary to support our troops in the field, to bolster our public credit, and to prevent destitution and despair among American families. I welcome that debate. But as long as I remain president, the national debt of the United States shall not be questioned. That is my pledge to you, to the world, and to the memory of the brave men and women who gave the last full measure of devotion to rescue the United States from forces who long ago sought its destruction. Good night. And God bless America.