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
At a town hall event in College Park, Maryland, President Obama swatted away suggestions that he invoke section 4 of the Fourteenth Amendment to issue new debt despite the debt ceiling, noting that he had "talked to [his] lawyers and "they are not persuaded that that is a winning argument."
Now, the gentleman asked about the 14th Amendment. There is -- there's a provision in our Constitution that speaks to making sure that the United States meets its obligations. And there have been some suggestions that a President could use that language to basically ignore this debt ceiling rule, which is a statutory rule. It’s not a constitutional rule. I have talked to my lawyers. They do not -- they are not persuaded that that is a winning argument. So the challenge for me is to make sure that we do not default, but to do so in a way that is as balanced as possible and gets us at least a down payment on solving this problem. [...] But I’m sympathetic to your view that this would be easier if I could do this entirely on my own. (Laughter.) It would mean all these conversations I’ve had over the last three weeks I could have been spending time with Malia and Sasha instead. But that’s not how our democracy works. And as I said, Americans made a decision about divided government. I’m going to be making the case as to why I think we’ve got a better vision for the country. In the meantime, we’ve got a responsibility to do our job.
Obama's political strategy is to use the debt ceiling crisis to put pressure on both Congressional Republicans and Democrats to put together a big deficit reduction deal that will establish him as a reasonable moderate and "the only adult in the room" and help ensure his reelection in 2012. Therefore it makes no political sense for him to say that he can invoke section 4 and solve the crisis by himself. That would take all of the pressure off members of Congress (in both parties). (For the same reason, he prefers a big deficit reduction deal to a clean bill raising the debt ceiling or even the McConnell plan, which gives Congressional authorization for him to act unilaterally). Quite aside from his political strategy, Obama does not appear to believe that he can act constitutionally under present circumstances. You should not assume that he is not telling the truth. There are at least three reasons why he might believe this:
(1) There is another perfectly legal fail safe available (e.g., coin seigniorage) that he does not want to publicly announce, but that he will use if we get past the August 2 date; as long as a legal alternative exists, there is no justification for him to ignore the debt ceiling to preserve the validity of the federal debt.
(2) He believes that the markets will start to send strong signals in the days leading up to the deadline, which will frighten Congress into acting, just as they did in the crisis that led up to the passage of TARP. Congress will exercise its constitutional responsibilities, so there is no constitutional need for him to act unilaterally.
(3) He believes that as the deadline approaches, statements by the Secretary of the Treasury that Social Security checks will not be mailed out will cause Congress to fold like a house of cards. Once again, Congress will exercise its constitutional responsibilities, so there is no constitutional need for him to act unilaterally.
Suppose, however that neither (1) (2) or (3) is the case: he has no other legal fail safe and despite market warnings and concerns about Social Security checks, Congress is so hamstrung that it cannot act and he does not believe that it will act in time, as the U.S. economy (and the world economy) melts down. At that point, I expect his views on the constitutional option will change rather quickly.
However, Obama does not want to cross that bridge until he comes to it. Nor does he want to signal--or even hint--what he would do if he came to that bridge. That is why he making these public statements.
You should keep this in mind as you try to understand why Obama seems to be ignoring the life preserver of section 4 that people to his political left keep pointing to in ever more urgent terms. It is not that he doesn't see it. It is rather that he is deliberately rejecting it. For now.
You should also understand, however, that both Congress and the President have a constitutional duty to prevent the validity of the federal debt from being questioned. Obama is not simply making a constitutional argument; he is also playing a political game. He believes that Congress is acting irresponsibly and he is acting responsibly, and that time is on his side. Nevertheless, his constitutional duty is to prevent the validity of the federal debt from being questioned even if Congress is acting irresponsibility and even unconstitutionally. At some point, his underlying constitutional obligation to preserve the Republic must overcome his political desire to win. Certainly that point would be reached if the economy begins to melt down and Congress is politically paralyzed. Then he must act.