A Suggestion For Dealing With The Debt Ceiling Nonsense...

[Lord Jim]

Long term...

Once the government finally finds it's way out of the current nonsense, and we have a Debt Ceiling extension that goes on for some reasonable amount of time, (not a six week extension, that looks more and more like it will be a part of some sort of agreement) but a Debt Ceiling agreement that will go on for at least a year, I propose the following:

Within a few weeks of reaching this agreement, the President should sign an Executive Order announcing his intention, when the next debt ceiling deadline is reached, to exercise his authority under the Full Faith And Credit provision of the Constitution, to make whole the debts incurred by the United States...

Obama made a very persuasive argument at a press conference earlier this week, (an argument which I believe I also earlier posted in this space) for why this invocation of Presumed Presidential Authority would be problematic with a Default pending...

Even operating under an expedited proceeding, bypassing lower courts, it would take at least two weeks for the Supreme Court to issue a ruling, during which time enormous uncertainty would prevail, and great damage would be done...

And if at the end of that proceeding, the Court ruled against the President on his interpretation, the cost would be even greater...

But if this issue is tested at a time when the markets know that the FFAC of the United States is not in danger of immediate collapse, all of that can be avoided...

The best course of action, would be to eliminate this whole "debt ceiling" concept legislatively... (there's no reason for it)

But if we accept that this is a political impossibility, I think the course I'm suggesting is a valid one...

Let the President issue the EO I'm suggesting...(After we get a long term increase in the DC)...

At that point, one should certainly expect that the House would immediately go to court challenging his move...

But if the House didn't move immediately...(preferring instead to wait till the last moment when the existing Debt Ceiling agreement was about to run out, in order to create yet another crisis built around this,) Obama could have Harry Reid and the Senate challenge his EO in court...

(Somebody with standing would have to challenge the EO in Court; the SC (like all courts) can only decide cases that are before it.)

If this approach were taken, we would be able to litigate once and for all, (regardless of how the SC decided; though as I've said I personally would hope that they would find in favor of the FFAC interpretation) whether or not this approach would pass Constitutional muster with the SC, while we weren't dancing on the precipice of financial default...

If the Court ruled in favor of the President, all well and good, that would be the end of this "Debt Ceiling" nonsense...

But even if the Court ruled against the FFAC argument, it would happen in an environment where the Debt Ceiling issue was still months away, (having already been approved legislatively) and it would have no immediate effect, and we'd be no worse off then we are now...

Please tell me where the mistake in my argument is here...

[Econoline]

Your mistake is that you're a reasonable, intelligent Republican. Apparently the nation has no use for your kind anymore.

[Big RR]

I still imagine a president could be impeached for doing that, regardless of what the USSC says. True, his action couldn't be reversed by congress, but he could be removed from office by a congress believing he usurped their power, even if the SC ruled he could do exactly that.. And FWIW, if the House voted to impeach, there's really not all that much the SC could do IMHO. It's a dangerous path to tread, and IMHO it would be even more dangerous to vest such a power in a single individual, as attractive as avoiding these showdown would be.

[Econoline]

I still imagine a president could be impeached for doing that, regardless of what the USSC says. True, his action couldn't be reversed by congress, but he could be removed from office by a congress believing he usurped their power, even if the SC ruled he could do exactly that.. And FWIW, if the House voted to impeach, there's really not all that much the SC could do IMHO. It's a dangerous path to tread, and IMHO it would be even more dangerous to vest such a power in a single individual, as attractive as avoiding these showdown would be.

Section 4 of the 14th Amendment says, “The validity of the public debt of the United States…shall not be questioned.” (I believe that's what the President would cite as his authority?) That doesn't give any power exclusively to Congress; indeed, by refusing to raise the debt limit and thus calling the public debt of the United States into question, Congress would be shirking the responsibility to uphold the Constitution which it *SHARES* with the President.

While this Republican House of Reprehensibles might be crazy enough to pass a bill to impeach Obama, there's no way in hell that two thirds of the Senate would vote to convict--especially if the grounds were that he supposedly violated the Constitution and the SC agreed that he hadn't.

[Lord Jim]

The beauty of this proposal Econo, is that it doesn't require "reasonable intelligent Republicans" to follow it...

All that's required is that we get a DC bill that goes out at least a year,(which will happen eventually; both sides want a DC that will get us past the next election cycle) and then for the President to test whether or not he has this power in an environment where whether he wins or loses at the SC it won't have an immediate affect.

I still imagine a president could be impeached for doing that, regardless of what the USSC says. True, his action couldn't be reversed by congress, but he could be removed from office by a congress believing he usurped their power, even if the SC ruled he could do exactly that..

Well, Big RR, as Jerry Ford once famously said in regards to Earl Warren, "an Impeachable offense is what a majority of the House and 2/3 of the Senate says it is"...

That's always true...

But if the scenario I'm suggesting were followed, I don't believe there'd be any great clamor for Impeachment...(except of course amongst those who have wanted to Impeach Obama since the first day that Kenyan Muslim Socialist took Office...)

Because my proposal is predicated on the idea that we get a one year agreement on the DC, and then (well before that agreement runs out) the President goes before the nation and says something like this:

"Good evening...

I am very pleased that we have reached an agreement with our friends in Congress on both sides of aisle on raising the debt ceiling. This is a very positive thing for the country, and I'm glad we've achieved it.

Arguments over what the proper role of government is, and how government should address that role are part and parcel of our robust democracy, and I welcome those debates.

However, I have concluded that these periodic political fights when they endanger the Full Faith and Credit of the United States over spending already authorized by The Congress Of The United States, do not properly lie within the purview of those debates; the stakes are too high...

Accordingly, I am today signing an Executive Order announcing that as of the expiration of the currently agreed to Debt Ceiling limit, that I will be exercising the authority that I believe the President has under the Full Faith and Credit provision of the Constitution to authorize the Treasury of the United States to make whatever payments are necessary and borrow whatever monies are required to meet that Constitutional obligation.

I fully expect my position to be met with opposition; that is why I have chosen this moment, when the existing agreements we have in place on the debt ceiling have full force of law, and will for some time to come, to call upon the courts to settle this question...

If The Supreme Court rules that The President's authority under the Full Faith and Credit Provision of the Constitution does not extend to guaranteeing the payments of all debts already authorized by the Congress, then I will of course abide by that decision.

God bless you, and God bless the United States Of America. Thank you, and goodnight."

[Big RR]

Econoline--if you look into the 14th amendment, you'll see that the clause in question was put there for a very specific reason; I doubt it's legal for the president to act unilaterally here because Article 1 grants the powers of the purse strings to the legislature, not the executive. And even if the USSC were to rule it constitutional, I think it very dangerous to give any executive power to raise/commit money not appropriated by Congress on his or her own, we're setting up an awfully powerful individual who could act by fiat. That's not what I want, despite how much I deplore this situation.

Jim--you may be right, but my broader point is that congress recently has used the impeachment option the same way it is now using this option, i.e. in a way never really used before. Before Clinton, only one president was ever impeached (and one resigned rather than being impeached), but regardless of how politically motivated the charges were, they were serious charges and the vote against removal was far from guaranteed. The Clinton impeachment changed that and some chose to use impeachment with no real chance of removal, to make a political statement. I don't want to derail this thread to debate the merits of that case, but removal was doomed to failure, and the process was only conducted to try and tarnish the president, bend him to their will. And if congress loses the power to control the debt, they can (and probably will) just have a lot more impeachments, tying up the government that way.

Unless and until we get people into the government who realize they are there to do an an important job and are committed to doing that job, this will happen again and again. IMHO, this won't happen by giving an already too powerful (again IMHO) executive more power--that's the path to dictatorship. It happens when we as a people take it seriously and demand more of our elected officials. I don't see any other option, and if we choose not to do this, then we'll get what we deserve until we do.

[Crackpot]

RR in this case The president is not raising or committing money. He is meeting the payment obligation for monies already commited.

[Big RR]

True, but he would need some way to raise or otherwise get that money to make that payment. Merely printing money would not be a good idea, so how do you think he would get it?

[Crackpot]

Same way they are getting it now. Borrowing it.

[Big RR]

And that's the point, borrowing is a way of raising money and should come from the legislature, not the executive. And IMHO, the ability to borrow even for a good reason is not a power we want to vest in a single man or woman. Indeed, I can see a big danger in allowing a president to borrow at will.

[Scooter]

How is it borrowing at will, if the only things that the borrowed money can be spent on are those appropriations approved by Congress?

If Congress approves a $2 trillion budget with revenues of $1.8 trillion, then how it is anything but obvious that Congress expects the $200 billion deficit to be borrowed?

[Big RR]

Because that's part of the checks and balances built into the system; if congress cannot raise enough for the appropriations it must either borrow or slash the budget, that's not the province of the executive.

[liberty]

True, but he would need some way to raise or otherwise get that money to make that payment. Merely printing money would not be a good idea, so how do you think he would get it?

What if we printed a special money that could only be spent overseas and backed up by coal, but not negotiable within the US. Just thinking

[Lord Jim]

I see another possible approach to this, one that might be less incendiary and controversial then the Executive Order approach...

After there is a relatively long debt ceiling agreement in place, (again, any challenge to this needs to take place without imminent default pending) instead of Obama issuing an EO, the Justice department could launch a challenge against the Constitutionality of the Debt Ceiling law itself...(I may be mistaken, but I don't believe it's ever been challenged in the courts before; up until now, no party with standing would have had any reason to challenge it)

Based on this language:

“The validity of the public debt of the United States…shall not be questioned.”

I think a strong case could be made that once funds have been duly appropriated by the Congress, and that appropriation has been signed into law by the President, at that point, it represents a lawfully incurred "public debt"...

The validity of which cannot be questioned...

The whole debt ceiling vote process could be viewed as unconstitutional; as an artificial vote that could conceivably call into question "the validity of the Public debt of the United States"...

Which would be unconstitutional...

To put it more simply, "Look, as soon as the money is appropriated under the legal process, it's a valid public debt of the United States. Any Congressional action that brings that debt into question is unconstitutional."

I have no idea how the SC would rule on it, but it seems to me that given the stakes involved it's certainly a theory of the law worth testing...