Should Obama Use 14th Amendment To Raise Debt Ceiling?

The possibility that Congress will not pass a bill to raise the debt ceiling has some Democratic leaders, including former President Bill Clinton, suggesting that President Obama invoke the 14th Amendment. It states that the "validity of the public debt of the United States ... shall not be questioned." The White House says it will not use the amendment to increase the debt limit, but Jonathan Zasloff of UCLA Law School tells host Guy Raz that the president would be on solid legal ground if he chose that option.

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GUY RAZ, host: Now, what happens if it all comes down to the wire, with no resolution? Well the answer is, no one knows. Some Democrats, and even former President Bill Clinton, are urging President Obama to invoke the 14th Amendment to the Constitution. Some scholars argue that would allow him to continue paying U.S. debt without congressional authority.

Now, White House lawyers don't agree with that argument. Jonathon Zasloff is a law professor at UCLA, and he's with me now to help explain how all of this would work. Jonathan, welcome to the program.

JONATHAN ZASLOFF: My pleasure to be here.

RAZ: What, exactly, does the 14th Amendment say about U.S. debt?

ZASLOFF: What the 14th Amendment says is that the public debt of the United States authorized by law shall not be questioned. It was originally written right after the Civil War, to make sure that the Union war debts would not be threatened when Southern congressmen came back into the Union.

So they put a provision in the Constitution to make sure that those debts would be paid. But the Supreme Court has repeatedly held that that provision protecting the public debt from these kinds of political machinations applies to far more than just Civil War debts.

RAZ: OK. How strong is the argument, the constitutional argument, that the president could unilaterally just continue to pay the debts and ignore the debt ceiling imposed by Congress?

ZASLOFF: In this case, I believe that it's a decent argument. It's not a slam dunk. And the reason why is because if the president can't unilaterally raise the debt ceiling when - on Tuesday morning if the Treasury runs out of money, his only other option would be to pick and choose which debts, which appropriations, which obligations to pay.

The problem is that the Supreme Court has also held that the president can't pick and choose like that. So he's in a position where if he doesn't raise the debt ceiling, he would be forced to do something unconstitutional.

The second reason is given the Supreme Court's doctrine on something called standing - which is who can actually sue in order to stop a particular action - it's very, very unlikely that, at least according to current Supreme Court doctrine, anybody would have standing to sue him, to get into court. So in terms of the basic power politics of the notion, he could do it and virtually nobody could stop him.

RAZ: So you don't think that this would end up in the courts if he did it?

ZASLOFF: I don't believe that it would. The Supreme Court has repeatedly held that in order to be able to sue somebody, the plaintiff has to have what's called a particularized injury in fact. You actually have to be harmed by something. But if the president then unilaterally lifted the debt ceiling so that the government would continue to pay its obligations and maintain the full faith and credit of the United States, no one would be harmed by this. So no one would really have standing to sue.

RAZ: But there would be some pretty significant political ramifications if the president did use the 14th Amendment in this way, don't you think?

ZASLOFF: Oh, yes. I think the Republicans in Congress would be furious. I think the Tea Party would go nuts. And one way in which you think about the constitutional structure and how it works is that if the House is that angry about it, if they believe that the president really had done something that wrong, then they would turn around and impeach him.

Whether they would want to impeach the president for maintaining the full faith and credit of the United States, and making sure we did not have a international financial meltdown, is a judgment that they would have to make.

RAZ: If, according to your judgment - the judgment of other legal scholars, law professors and constitutional scholars is that the president could do this and probably get away with it, why do you think the White House has absolutely ruled this out as an option?

ZASLOFF: Well, there are a few arguments. Could be that he really wants a deal - one, for political reasons because he wants to seem like the great mediator who's able to get people together. Another reason might be that he wants a deal because even if he's able to overcome the debt ceiling problem, the current year's budget runs out in September, and we might face the prospect of another, protracted government shutdown. So he may be figuring, look, I might as well take care of the whole thing right now.

The third reason might be that some people think that Wall Street would not react well to bonds that are issued without express congressional authorization. I'm somewhat skeptical of that. But other people might say, well, if there's any cloud on the debt that's issued now, you wouldn't really be doing any good with it anyway.

RAZ: You're a law professor at UCLA.

ZASLOFF: I am.

RAZ: I've got to assume you're a pretty smart guy. If you were in the White House, you would say to the president: Mr. President, just do this; invoke the 14th Amendment.

ZASLOFF: I would do this. There are other options the president has but yeah, I would. That's what I would tell the president to do. But I think at this point, the judgments are more political than legal.

RAZ: That's Jonathan Zasloff. He's a professor at UCLA Law School. Jonathan Zasloff, thank you so much.

ZASLOFF: My pleasure.

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