Many of President Barack Obama’s friends on the left are disappointed with his performance during the debt-ceiling negotiations. In fact, they are starting to lose their enthusiasm for his re-election.
To be blunt, liberals are becoming convinced that Obama is a wimp. The best evidence of his wimpiness is said to be his failure to use his presidential power under the 14th Amendment to override or simply ignore the debt-limit law. But about this particular matter, Obama’s liberal critics are wrong. Regarding the Constitution, this was Obama’s finest hour.
The 14th Amendment has been around since 1868 and is probably the most heavily litigated provision in the Constitution. Debt-ceiling battles have been going on since at least World War II. Is it possible that, until a few months ago, this extraordinary presidential power to ignore a law passed by both houses of Congress and signed by himself or one of his predecessors just sat there, unnoticed?
Yes, it’s possible. But is it likely? The precise words are: “The validity of the public debt of the United States, authorized by law … shall not be questioned.” Clear meaning doesn’t exactly leap from that phrase. In the history of the Supreme Court, it has been cited exactly once, in 1935. Bill Clinton said at the peak of the recent debt debate that, as president, he had considered using the power of the 14th Amendment twice, but didn’t need to because the Republicans caved. He also apparently didn’t feel the need to mention it in public. Nor had anyone else involved in debt-ceiling politics (which got worse, but didn’t start, this year), until suspiciously recently.
Obama, asked about asserting a 14th Amendment right to raise the debt limit unilaterally -- or at least threatening to do so -- said: “I’ve talked to my lawyers. They are not persuaded that this is a winning argument.” And that was that.
Obama’s reluctance to use a power he felt he wasn’t entitled to was impressive, even if the former constitutional lawyer was wrong in his interpretation. When was the last time a president voluntarily gave up power for no better reason than obeying the Constitution (which, just incidentally, he has sworn an oath to defend)? If it had been a Republican president and his supporters in the legislature were making such a case for an imperial presidency, liberals would be having fits.
Obama’s stand on principle is especially noble because he might well have been able to use the public debt clause to have his way, even if his interpretation of it was wrong. First, he could have threatened to use it, even knowing in his heart that he would not. And second, there’s a good chance the Supreme Court would not take such a case.
We are accustomed to having the court settle our big questions and tend to forget that judicial review is not in the Constitution: It’s just because, procedurally, the Supreme Court decides last that its view carries the day. But the court tends to stay away from arguments between the other two branches. Also, there is the question of standing: Who would have the right to bring a suit for the court to rule on? Maybe no one.
Clinton, in a rare episode of back-seat driving, said that in Obama’s place he would have asserted presidential power “without hesitation,” to avoid the debt ceiling, “and force the courts to stop me.” Clinton should know better than that.
Presidents and other government officials have an independent obligation to obey the Constitution. They’re not supposed to give defiance a try and see what happens. Courts have no armies and, ultimately, no power to stop anyone from doing anything. Their authority depends on constant reinforcement and what they call in the theater a “willing suspension of disbelief.” Macho talk like Clinton’s doesn’t help.
No doubt it would have been useful for Obama to have that arrow in his quiver. Rejecting it on constitutional grounds, when everyone around you is advising otherwise, is not wimpy behavior. In fact, it’s pretty courageous.
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