Correction: - Invoke the 14th - And End the Debt
Standoff

[Moderator's Note: Below is full version of the op-ed
from the Washington Post by Katrina vanden Heuvel,
editor of The Nation. The version distributed yesterday
by Portside was truncated. We apologize.]

=====

Invoke the 14th - and end the debt standoff

by Katrina vanden Heuvel, Opinion Writer
Washington Post July 5, 2011
http://www.washingtonpost.com/opinions/invoke-the-14th--and-end-the-debt-standoff/2011/07/01/gHQAUif8yH_story.html

On its current course, the United States is four weeks
away from defaulting on its debt for the first time in
its history. If that happens, businesses will fail.
Financial institutions will fail. Home values will
decline. Mortgage rates will skyrocket. Spending and
investment will all but disappear. Social Security
checks will stop being mailed. Everything from military
pay to food inspection will be compromised, if not fully
cut off. The millions upon millions of Americans who are
unemployed or underemployed will be joined by millions
more.

Across the world, America's second financial collapse in
three years will drag down already fragile economies in
Europe, Latin America and Asia, potentially creating a
"worldwide depression," as Senate Majority Leader Harry
Reid described it. In short, we would be thrown back
deep into economic turmoil - only this time with even
fewer tools to crawl our way out.

In theory, this is unthinkable, and it will be remedied
by reasonable political parties making reasonable
concessions across the negotiating table. But
Republicans have been negotiating in bad faith,
unwilling to compromise even an inch on their extremist
and absolutist positions. Some are no longer willing to
come to the table at all.

With that backdrop, President Obama may find that there
is only one course left to avoid a global economic
calamity: Invoke Section 4 of the 14th Amendment, which
says that "the validity of the public debt of the United
States ... shall not be questioned." This constitutional
option is one that the president alone may exercise.

If the Aug. 2 deadline arrives and no deal has been
made, Obama could use a plain reading of that text to
conclude - statutory debt ceiling or not - that he is
constitutionally required to order the Treasury to
continue paying America's bills. In that sense, this is
not just a constitutional option, it is a constitutional
obligation, one even the Tea Party will have trouble
denying.

There are reasons why such a solution is less than
ideal. There ought to be some concern about executive
overreach; the very idea of the president deciding which
laws are and are not constitutional has disturbing
ramifications. And to the extent that the goal of the
move is to prevent market panic, it remains an open
question as to whether it would succeed. But market
panic will surely come with the failure to reach a deal
altogether. The consequences of default are simply too
severe - and too long-lasting - to take this option off
the table. It may not be ideal as an elective choice,
but as an option of last resort, it is a necessity.

If Obama does choose to move forward, he will be doing
so on strong legal footing. In Freytag v. Commissioner
(1991), the Supreme Court held that the president has
"the power to veto encroaching laws .?.?. or to
disregard them when they are unconstitutional." The
final word still may lie with the Supreme Court, but in
the interim, the president need not wait for its
opinion. "As a simple matter of constitutional logic,
the president can refuse to enforce a statute he
believes violates the Constitution," said Professor
Barry Friedman of NYU Law School in a telephone
interview with me. "In fact, he is sworn by oath not to
enforce it," added Friedman, author of the book "The
Will of the People: How Public Opinion Has Influenced
the Supreme Court and Shaped the Meaning of the
Constitution."

It is also unlikely that the action would be
successfully challenged in court. Only Congress would
have standing to sue, but doing so would require a joint
resolution, something a Democratic-controlled Senate
would almost certainly block.

President Obama should commit to exercising this
obligation - as a last resort. And he should commit
publicly, as soon as possible.

Doing so will give him the leverage he lacks in the
debt- ceiling negotiations. Right now, Republicans'
willingness to let the economy default, consequences be
damned, gives them enormous leverage. But presumably, if
a deal is not reached by the deadline, and the president
is forced to exercise his constitutional obligation,
Republicans will get nothing at all. Not the trillion
dollars in cuts already agreed to. Not the additional
trillion in cuts they are seeking. The threat, alone, of
invoking the 14th Amendment defuses the bomb Republicans
have strapped to the hostage.

Most would agree that taking such a step would be out of
character for a president who has avoided this brand of
confrontation. But great leaders adapt to adverse
circumstances, and this is no exception. The president
doesn't just have a political and legal obligation here;
he has a moral one, too. A default would be wrenching
for the poor and middle class, stripping families of
their jobs, their homes and programs they depend on for
survival. A debt deal, negotiated entirely on Republican
terms, would be devastating too - for everyone who isn't
a hedge-fund manager or private jet owner.

That leaves the president with two choices: He can give
in to unthinkable Republican demands or he can choose,
instead, to exercise his constitutional authority, end
the debt- ceiling standoff and craft a new budget deal,
defined, finally, by shared sacrifice.

[Katrina vanden Heuvel writes a weekly column for The
Post. She is the editor and publisher of The Nation
magazine and writes the "Editor's Cut" blog there. She
has also edited or co-edited several books, including:
"Meltdown: How Greed and Corruption Shattered Our
Financial System and How We Can Recover" (2009), "Taking
Back America -- and Taking Down the Radical Right"
(2004) and "Voices of Glasnost: Interviews with
Gorbachev's Reformers" (1990). A New York City native
and a graduate of Princeton University, vanden Heuvel
lives in New York with her husband and daughter.]

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