When the clock is winding down and a team is losing a hard-fought football game, coaches sometimes call for a Hail Mary: a long pass toward the other team’s goal that has only the slimmest chance of success.
It occasionally works, and usually the team throwing the Hail Mary has no other option. But most of the time the Hail Mary is just the final step in a long march to defeat.
So it should tell us something about the Democrats’ political position when former President Bill Clinton has, in effect, called for a Hail Mary in the contest over raising the federal debt ceiling. Coach Clinton’s trick play is to have President Obama declare himself able to unilaterally raise the debt ceiling on the authority of the 14th Amendment, even if Congress fails to grant him the borrowing power he wants on terms he is willing to accept.
Most people know the 14th Amendment as the Constitution’s guarantee of equal protection and due process rights, but a lesser-known section addresses public debts. Section 4 of the amendment states: “The validity of the public debt of the United States, authorised by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.”
This clause was written in the wake of the Civil War to ensure that creditors who had supported the Union would not be stiffed if legislators from the former Confederate states took control of Congress. However, in the 1935 case of Perry v. United States, the Supreme Court held that the section also protected government bondholders from being repaid in currency other than what they had been promised. The court said that, although the limited original intention was clear, it saw no reason “for not considering the expression ‘the validity of the public debt’ as embracing whatever concerns the integrity of the public obligations.”
Clinton and various House Democrats argue that allowing the country to enter a situation where it might default would violate the country’s obligation under the amendment to respect the validity of its debts. Obama, they say, can and should act unilaterally to stop such a situation from occurring by ignoring the debt ceiling and continuing to authorise new borrowing. Faced with questions over whether such a move would be legal, Clinton said that, if he were still president, he would set aside such reservations and “force the courts to stop [him].”
Jack M. Balkin, a law professor at Yale, supported Clinton, saying “At the point at which the economy is melting down, who cares what the Supreme Court is going to say? It’s the president’s duty to save the Republic.”
But the field looks different from the sidelines than it does when you’re staring at a distant end zone, and I doubt that Clinton, as president, really would have taken such aggressive action. This was not the style favoured by the president who sent cruise missiles crashing into the sand while al-Qaida hammered out plots from its safe haven in Afghanistan, who intervened in Bosnia only after three years of slaughter culminated in the massacre at Srebrenica, and who signed the defence of Marriage Act despite claiming that he “strenuously opposed discrimination of any kind.”
Obama seems inclined toward a “do as I do, not as I say” interpretation of his predecessor’s advice. He said that he talked to his lawyers about the so-called “constitutional option” and that they are “not persuaded that that is a winning argument.”
Whether it could be a “winning argument” depends on the courts. Harvard’s Laurence Tribe does not think the issue could ever make it to the Supreme Court, since its political opponents would have a hard time showing the sort of direct injury required to demonstrate standing. “This is not a circumstance in which the courts have any plausible point of entry,” he said.
But before the 2000 decision in Bush v. Gore, a professor of Tribe’s standing probably would have also said that a disagreement over a state’s vote count was a circumstance in which the Supreme Court would have no “plausible point of entry.” In that case, Tribe argued unsuccessfully for Gore. While Gore did not win, the case proved that courts can be very good at finding points of entry.
As for Balkin’s claim that the president has a duty “to save the Republic,” I don’t disagree, but the Republic is far more likely to be damaged by a president who believes he can indebt the country without limit and on his own authority than by a failure to reach a political outcome that one of our two parties desperately wants.
The hard political truth is that while leaders of both parties want an agreement, Democrats’ rank-and-file wants and needs the additional borrowing authority a lot more than the Republican back-benchers do (as became obvious last night, when House Speaker John Boehner had to put off a vote on his own bill for lack of sufficient GOP support). This means Democrats are going to have to give Republicans pretty much whatever they want in order to keep funding the government programs that Democrats, much more than Republicans, want to stay funded.
The Hail Mary that has a chance of working is a deal between the two parties’ leaders in Congress, not a dubious assertion of presidential borrowing power that, in all likelihood, courts will rule the president does not have.
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