Another Perspective

President Obama’s Trump Card

The Constitution's default option.

By 7.6.11

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Imagine, for a moment, that you are president of the United States, the leader of the Free World, the most powerful man in the galaxy. You have been negotiating, maybe in good faith, maybe not, on the matter of raising the debt ceiling. Actually, you have had your vice president out there, doing what by all accounts is a yeoman job, negotiating budget cuts. But the talks are breaking down over issues of taxes, tax expenditures, tax breaks or "revenue enhancements." Neither the House GOP caucus nor the left wing of your own party is giving any ground. You have had it up to here with Grover Norquist and Eric Cantor and you want to get back to raising big money for your re-election campaign. 

In your heart of hearts, you, the president, don’t want to give any ground either. Not many Americans really want to take the castor oil and reform entitlements or cut their farm subsidies or close the National Parks. And what’s the worst that could happen?  You get re-elected and let the Bush tax cuts expire? Or maybe you lose, move back to Chicago and become an international rock star?

What’s a president to do?

Here’s what: Just ignore the debt ceiling. Just go ahead and keep paying those bills. So sue me!

In other words, President Obama, the antithesis of Andrew Jackson, should, well, pull an Andrew Jackson. This would be what the French call a fait accompli.

Sure, we Republicans and conservatives would throw a snit. But aren’t many of us, including the Speaker of the House, on record opposing defaulting on our debts? Conservative carping would be mere background noise to the big news that the President has taken charge and brushed the congressional pygmies aside for the sake of the American economy and the nation’s credit in world markets.

Let’s face it: This is President Obama’s trump card.

The president also could play the Constitution card. Specifically, he could cite Section 4 of the 14th Amendment:

"The validity of the public debt of the United States, authorized by law, including debts incurred by payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned."

I had forgotten about this section until I saw an article in the paper about desperate Democrats looking around for a get-out-of-jail-free card. This passage may not actually represent that kind of free pass, legally speaking. But it is more than enough to give the president the high ground, politically speaking, and pretty much ignore critics. Moreover, when was the last time you recall a legal challenge seriously reining in a determined Chief Executive in war or peace? Cicero gave way to Caesar a long time ago in America.

And who would really want to challenge such a bold assertion of presidential power, at least as it relates to preserving the credit worthiness of the United States? I am betting the Republican House and Senate caucuses would pretty much suck it up and live with it. 

Constitutional conservatives, be they originalists, textualists, or assorted strict constructionists, might cite various scholarly arguments in opposition to this Jacksonian move. But, really, how many voters, having heard about Section 4 of the 14th Amendment, would find those arguments compelling? I am not sure even the constitutional conservatives would.

I confess to being of two minds about this seeming eventuality. On one hand, I am completely behind using the debt ceiling expiration as an opportunity to wrestle as many budget cuts as possible from the White House, especially since popular opinion seems to detest the idea of raising the debt limit. 

On the other hand (and I may be getting old), taking the chance of defaulting on our national debt runs counter to my Burkean soul. It is too radical an approach to our national predicament.  Better to legitimize fiscal conservatism at the polls in 2012.  Indeed, any default would be hung around the necks of the Republican Party by a media overtly friendly to the president and his congressional party.

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About the Author

G. Tracy Mehan III served at the U.S. Environmental Protection Agency in the administrations of both Presidents Bush. He is a consultant in Arlington, Virginia, and an adjunct professor at George Mason University School of Law.