President Obama has publicly said that he is very reluctant to invoke 14th Amendment authority to raise the debt ceiling on his own, without congressional approval. And some have argued, as Obama has, that doing so would lead to many lawsuits and other bad results. Hendrik Hertzberg says the president could and should do this:
The President is constitutionally sworn to “take Care that the Laws be faithfully executed,” but if he enforces the debt ceiling, established by one law, he cannot meet obligations that other laws command him to fulfill. Nor can he submit to blackmail, lest the Constitution be informally amended to provide that any law, duly passed by the House and the Senate and signed by the President (and, if challenged, upheld by the Supreme Court), may be effectively voided by the action of one faction of one party in one half of the national legislature. And he absolutely cannot permit default, the consequences of which would be global and catastrophic…
In the end, Obama could have no honorable choice but to invoke the Fourteenth. There is little doubt that he would prevail. The Supreme Court would be unlikely even to consider the matter, since no one would have standing to bring a successful suit: when the government pays its bills, who is damaged? The House Republicans might draw up articles of impeachment, adopt them, and send them to the Senate, where the probability of a conviction would be zero. This would not be a replay of Bill Clinton and the intern. President Clinton was not remotely guilty of high crimes and misdemeanors, but he was guilty of something, and that something was sordid. Yet impeachment was what put Clinton on a glide path to his present pinnacle as a wildly popular statesman. President Obama would be guilty only of saving the nation’s economy, and the world’s.
Emily Bazelon and Eric Posner agree, both on the standing question that would likely avoid a protracted legal fight and on the political outcome.
Legal scholars and historians (including one of us) have been making the argument that Obama does indeed have the power to declare, without Congress, that he’ll pay off the nation’s debt. Our view is that he can cite his inherent emergency powers under the Constitution once financial markets begin to freeze up. Others have noted that the 14th Amendment provides that the “the validity of the public debt … shall not be questioned,” and have argued that while it instructs Congress, not the president, to protect the debt, the president can act if Congress violates its duty.The White House will keep insisting it doesn’t want to act on its own because doing so would be politically risky. The president would much rather Congress fold. There is always some residual risk from doing something that hasn’t been done before, so we understand the reluctance. But if there’s no deal by the end of next week and financial markets get wobbly, Obama should just go ahead. He is not shy about advancing executive power in other domains. Why not put the country and the world financial markets out of their misery? Wouldn’t the polls reflect support and relief? And wouldn’t the American political system be better off if presidents in future can remove this gun from their own heads?…
But lawsuits that challenge the president’s authority to issue debt would almost certainly go nowhere. Most plaintiffs would not be able to show a personal injury from the issuing of new debt. Lacking legal standing, their cases would be dismissed. Those who got beyond this stage would be blocked by the political question doctrine: Courts would dismiss the suit on the grounds that the controversy over the debt is an inter-branch conflict between the president and Congress that is not for judges to resolve. So if some creditors sell off Treasuries or refuse to buy new debt, the smartest investors—the hedge funds and the sovereign wealth funds—would sweep in to make a killing.
I suspect that President Obama considers this an absolute last resort, to be used only if the bond market grinds to a halt and takes the stock market with it.