an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Why Bill Clinton would invoke Section 4 of the Fourteenth Amendment (and Obama won't)
In an interview, former President Bill Clinton stated that he would invoke section 4 of the Fourteenth Amendment in the debt ceiling crisis. Clinton stated that
he would invoke the so-called constitutional option to raise the nation’s debt ceiling “without hesitation, and force the courts to stop me” in order to prevent a default, should Congress and the President fail to achieve agreement before the August 2 deadline.
Sharply criticizing Congressional Republicans in an exclusive Monday evening interview with The National Memo, Clinton said, “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.”
Lifting the debt ceiling “is necessary to pay for appropriations already made,” he added, “so you can’t say, ‘Well, we won the last election and we didn’t vote for some of that stuff, so we’re going to throw the whole country’s credit into arrears.”
What's going on here? Why is Clinton's interpretation so different from Obama's? It's important to recognize that Clinton is making both a political argument and a constitutional argument.
The political argument is that he would use the constitutional text as a weapon in the debate with Republicans early on to explain why they are being unreasonable and why they should back down and raise the debt ceiling.
The constitutional argument is that, aside from these political considerations, the President has the right to act without further Congressional authorization because the money is already appropriated.
Under some circumstances, the political argument might be quite powerful: The President portrays himself as the defender of the Constitution, and he portrays the Republicans as violating the Constitution either for selfish reasons (their wealthy contributors don't want to pay more taxes) or because they are ideological zealots. By doing this early, as soon as the issue is raised, Clinton hopes to nip the potential hostage situation in the bud. Then the two sides can have a debate about budgets, spending, and taxes. At least, this is what Clinton thinks would have happened if he had been President. However, because Clinton didn't face a Republican Party strongly affected by a Tea Party caucus, we don't actually know what he would do in these circumstances if he were President.
The constitutional argument Clinton is making is a bit less unclear. There are many ways of interpreting what Clinton said. One one reading, he seems to be saying that the debt ceiling is constitutionally superfluous. That is, once you authorize expenditures, you've also authorized borrowing to pay for expenditures, regardless of the text of the debt ceiling statute. Put so starkly, I'm not sure it's right. Surely in a wide range of areas, including foreign policy and even in the conduct of warfare, Congress may tell the President: "Do X but don't do Y to accomplish it." For example: detain terrorist suspects but don't violate the Geneva Conventions. Or: engage in electronic surveillance but only under the terms authorized by the Foreign Intelligence Surveillance Act. Anybody who is worried about George W. Bush's unilateralism after 9/11 should be worried about unilateralism by a later president, whether Democratic or Republican.
The President has a duty, under the Take Care Clause, to try to abide by all of the laws to the extent he can. So if he can abide by section 4 of the Fourteenth Amendment, and the debt ceiling, and appropriations statutes, he has a duty to try to do so, through whatever legal, financial and accounting methods he has at his disposal.
But what if he can't? What if the markets start to melt down and he has exhausted all other alternatives?
The best version of Clinton's argument is a little different than the one he is quoted as making. It's an argument for emergency powers: If all else fails, and we are in an emergency situation, the President may act to stabilize the situation. He can then get official authorization later on, or as Clinton says, "force the courts to stop me." It's very unlikely that they would.
Obama has not made the constitutional argument, and the reason, I believe, is that he doesn't actually want to make the political argument, and adopt Clinton's political strategy. It's worth noting that although the problem (and the threat by Republicans) was understood well in advance, Obama has not tried to nip the debt ceiling crisis in the bud by acting as Clinton said he would. Rather, Obama believes that he can turn what looks like a hostage situation into a opportunity to resolve concerns about government spending and to secure entitlement programs for many years to come. This might be a wise strategy or a foolish strategy given his political opponents. Nevertheless, it appears to be what he is doing. Therefore, it's important to understand that Presidents make (or do not make) constitutional arguments both for legal reasons and for political reasons. This explains why Clinton's approach is very different from Obama's.