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July 2011, Week 1

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[For a Lawrence O'Donnell interview about this issue
with former Reagan administration official Bruce
Bartlett on MSNBC's The Last Word, see,
http://www.msnbc.msn.com/id/21134540/vp/43601717#43601717
-- moderator]

The Speech Obama Could Give: 'The Constitution Forbids
Default'

Garrett Epps
The Atlantic
Apr 28 2011
http://www.theatlantic.com/politics/archive/2011/04/the-speech-obama-could-give-the-constitution-forbids-default/237977/

     Imagining a presidential address confronting
     Republicans who want to risk the nation's credit
     for political reasons

My fellow Americans, I am speaking to you tonight to let
you know the steps I have taken to ensure that America
lives up to its obligations during the current political
crisis. As you know, the continuing recession and the
pressures of running two wars have made it necessary for
the government to borrow money on the world market in
order to meet our commitments at home and abroad, see to
it that our armed forces receive their pay and
equipment, and fulfill our obligations to the retired,
the unemployed, and those in need of medical care.
Unfortunately, Congress has not passed an increase in
the statutory debt limit as the deadline approaches.
Members of the House majority have informed me that they
will not agree to an increase in the debt limit without
imposing restrictions on the government budget that will
threaten our nation's recovery, imperil the national
defense, and cause widespread suffering. I have offered
to negotiate in good faith, as I did during the budget
crisis, but they have shown no interest in real
negotiations.

As of midnight tonight, the government's statutory
borrowing authority will be exhausted. If no measures
are taken, the government must either default on its
bonded indebtedness or on its obligations to seniors on
Social Security, to unemployed workers dependent on
federal insurance payments, and to American service
personnel serving in areas of armed conflict.

That is what the Framers intended: to set the debt
obligations of our country beyond the reach of
Congressional meddling. For this reason, I have ordered
that Secretary of the Treasury Timothy Geithner
immediately begin issuing binding debt instruments on
the world market sufficient to cover all the current
obligations of the United States government, even in
default of Congressional action to meet those
obligations.
I take this action to fulfill the oath I took as
president of the United States. The Constitution
explicitly requires me, under my duty to "take care that
the laws be faithfully executed," to meet and pay all
debts of the United States.

This requirement is absolute. It is contained in Section
Four of the Fourteenth Amendment, which directs, in no
uncertain terms, that "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."

This provision makes clear that both the monies our
nation owes to bondholders, and the sums promised in
legislation to those receiving pensions set by law from
the federal government, must be paid regardless of the
political whims of the current congressional majority.
All obligations that the nation has undertaken by
drawing on its credit must at all times be rendered
current.

As a former professor of constitutional law, I want to
explain to you the origin of Section Four. After the
Civil War, political leaders in the defeated South
announced their intention of resuming their seats in
Congress and of using their power--augmented by
increased Congressional representation for the freed
slaves--to compel the federal government either to pay
off all debts of the Confederacy or to default on the
national debt which had been borrowed to finance the
Union war effort. They also intended to present to the
nation a huge bill for what they claimed was the value
of the slaves that had been freed by the Emancipation
Proclamation and the Thirteenth Amendment.

For this reason, the Framers of the Fourteenth Amendment
wrote into our fundamental law an absolute prohibition
against defaulting on the national debt. Its language
establishes a complete firewall against the misuse of
governmental power by one political faction to get its
way by wrecking the public credit. Only one other
provision of the Constitution--the Thirteenth
Amendment's categorical prohibition on slavery--is as
rigid as the language of Section Four. That language is
not binding only on Congress, but on all parts of the
government, including the executive branch.

For nearly a century and a half, the absolute language
of the Fourteenth Amendment was not even questioned. I
regret to say, however, that today our nation faces
exactly the threat Section Four was designed to guard
against. A vocal and determined political minority--what
our great Founder James Madison would have called a
"faction"--is determined to use its dominance in one
House of Congress as a weapon to circumvent the
democratic process. It wants to find a back-door way to
undo programs and policies that have been democratically
enacted over a 75-year period. It wants to impose a
narrow vision of government and America that has been
rejected by our people repeatedly over the same period.

This determined minority is now prepared to defy the
Constitution to get its way. Some of its voices have
begun to say that national default would be welcome,
even if it wrecks our international credit and leads the
U.S. to default not only on its bonded obligations but
on the debts due to its armed forces in the field--debts
that are even more sacred than "pensions and bounties
for services" already performed by veterans in previous
wars. Indeed, I am convinced that the only reason why
the framers of Section Four did not explicitly include
"payments to military personnel in the field during
congressionally authorized military action" is that it
was literally unthinkable even to the most hardened
partisans among them that any faction within the United
States Congress would countenance cutting off payments
to those who carry our flag in foreign nations under
hostile fire.

Some may ask why I do not simply use my executive
authority to juggle accounts and cook the federal books
in order to pay the most pressing obligations while I
implore this determined minority to honor their oaths to
uphold the Constitution. I do not have the luxury of
partial or halfhearted compliance with the absolute
command of our nation's fundamental law. Section Four
does not say that the national debt "shall be paid
sooner or later," or "shall be stretched out as long as
possible," or "shall be paid in some areas but not in
others." It also does not say "shall not be questioned
unless Congress really wants to."

As long as I remain president, the national debt of the
United States shall not be questioned. It says it "shall
not be questioned." The national debt must be paid in
full, on time, regardless of any political division
within our Congress. That is what the Framers intended:
to set the debt obligations of our country beyond the
reach of Congressional meddling. Those obligations will
not be questioned as long as I am president of the
United States.
This action requires me to authorize borrowing that is
not in conformity with the debt-limit statute. But no
congressional statute can command or permit our
government to violate the Constitution. I find the debt
limit, to the extent that it could be construed to
require national default on any obligation of our
nation, to be in the words of the great chief justice
John Marshall, repugnant to the Constitution and thus
void.

I regret that the intransigence of a small minority of
members of Congress have forced our nation into this
situation. I know that some of these same political
leaders will now charge me with violating the
Constitution -- the same Constitution that they
apparently have no desire either to read or to follow.
If they truly believe this to be true, I challenge them
to bring Articles of Impeachment against me. The charge
should be that I did what was necessary to support our
troops in the field, to bolster our public credit, and
to prevent destitution and despair among American
families. I welcome that debate.

But as long as I remain president, the national debt of
the United States shall not be questioned. That is my
pledge to you, to the world, and to the memory of the
brave men and women who gave the last full measure of
devotion to rescue the United States from forces who
long ago sought its destruction.

Good night. And God bless America.

---

Garrett Epps, a former reporter for The Washington Post,
is a novelist and legal scholar.  He teaches courses in
constitutional law and creative writing for law students
at the University of Baltimore. He lives in Washington,
D.C.

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