... we believe you must be willing to take any lawful steps to ensure that America does not break its promise and trigger a global economic crisis — without Congressional approval, if necessary.â€
Without Congressional approval? Well then, you won't be doing it legally.
This "14th Amendment solution" argument is that the 14th Amendment's clause providing that "the validity of the public debt of the United States, authorized by law, . . . shall not be questioned," implies that the president has the authority, even without congressional approval, to borrow money if necessary to pay off public obligations.
The trouble with this argument is that it ignores the distinction between public debt and
spending that Congress has mandated. Spending mandates have the force of law, but the 14th Amendment gives greater force to the government's obligation to pay off its debt. That means that in the event of a cash shortfall caused by an inability to borrow, the servicing of existing debt would have to take priority over congressionally mandated expenditures.
If Congress fails to increase the debt ceiling (or to reduce spending or raise taxes enough to obviate the need to borrow more), anything the president does would violate some law. Anything he does would be unconstitutional because all of the relevant powers--spending, taxing and borrowing--belong to Congress (with a secondary role for the president in signing or vetoing legislation).
The solution we've read some mention is for Obama to issue bonds without legal authorization. But without legal authorization, that debt would not be legally binding. Investors who bought such bonds would have no assurance of being paid back. The U.S. is able to borrow money cheaply because of the 14th Amendment's ironclad guarantee of repayment. U.S. bonds are the safest investment going because they will pay their promised rate of return barring a complete financial or constitutional collapse. Since the legally unauthorized Obama bonds would lack that guarantee, investors would demand a significant risk premium, assuming they were willing to buy the debt at all.
An investor who bought such bonds would presumably be betting that once the political crisis passed, Congress would retroactively authorize the debt, thereby ensuring its repayment. That would be a high-stakes gamble, since the president's open defiance of congressional authority would be likelier to exacerbate than ameliorate the crisis. If the crisis dragged on, spending obligations would continue to mount, leading to the issuance of more and more legally unauthorized debt at higher and higher interest rates--or, perhaps, to an inability to borrow money at all.
Now perhaps the public would blame Republicans for all this and vote them out in 2014. That would leave Obama and a Democratic Congress the decision of whether to authorize the extralegal, high-interest Obama debt, thereby committing the full faith and credit of the U.S. to its repayment, or to repudiate it, thereby calling the country's creditworthiness into question and pushing up interest rates even on legal debt.
Either way, such a resolution would involve a massive transfer of wealth to bondholders, making it even harder to sustain, never mind expand, the entitlement state. If Obama follows this advice, he'll have quite a mess on his hands. This time, it'll be one he inherited from himself.
- James Toranto (WSJ)
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