Democratic lawmakers are urging President Obama to force Republicans to take him to court over the controversial issue of raising the debt ceiling.
They believe the Supreme Court ultimately will have to resolve the battle over spending now raging between Republicans and the president.
But how the courts will rule is shrouded in uncertainty because little case law exists to serve as meaningful precedent, legal scholars say.
Democrats in Congress argue Obama should not feel constrained by the 1917 debt-limit law, which the federal government is projected to hit in late February, because it conflicts with other laws.
“The president, I think, has the authority under the Constitution and under the various statutes that are passed, if nothing is done, he must do something about paying the bills,” said Sen. Tom Udall (D-N.M.). “That issue may well go to the courts in our system.
It’s disgusting that a US senator would say something this deceitful. Ed excoriates Sen. Udall’s argument in a New York minute:
Supporters of this newfound presidential power over statute have been pointing to the 14th Amendment, specifically its fourth clause: “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” However, that passage doesn’t give the executive branch authority to do anything, and in fact requires that the debt “be authorized by law.”
Who does the authorizing? The more directly relevant Constitutional reference comes in Article I, Section 8, which specifically assigns Congress the authority to borrow: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow money on the credit of the United States[.]“ The debt limit itself is Congressional authorization for the executive branch (through the Treasury) to borrow what is needed.
If President Obama attempted to raise the debt limit through executive fiat, he’d be challenged in the courts before the announcement would be an hour old, most likely in the DC Circuit. One thing that might happen is that the court could grant a TRO prohibiting President Obama from enforcing this. The other option is that they’d rule against President Obama’s anti-constitutional action.
The clear language of the Constitution gives the power of the purse to Congress. That means the executive branch is prohibited from taking this extraconstitutional action. Further, any ConLaw professor will quickly note that laws that conflict with the US Constitution are unconstitutional, meaning that they’re a moot point.
It isn’t likely that President Obama will take this action because it would clearly expose him as running an imperial presidency. That isn’t the type of thing he’d want as part of his legacy.