Wednesday, July 27, 2011

The 14th Amendment: Not a Magic Bullet

I don't know who first suggested that President Obama utilize the presumed authority of the 14th amendment to by-pass the need of congressional approval to raise the debt ceiling; however, it's former President Bill Clinton's endorsement of such a move that has stirred liberals and progressives to speak out in blogs and intense Facebook discussions in favor of the President "using" the 14th amendment. 

It sounds so simple. I've been practicing law for 14 years; I studied constitutional law and I'm not nearly as convinced as many of my non-lawyer friends that using the 14th amendment is possible. Frankly, it drives me nuts when people chime in about the application of constitutional provisions with little or no understanding of the background or context. It's about as valid as my coaching a major league baseball team; I like baseball but I don't know enough about the game to coach anyone. Yeah, I know, some of you feel insulted; however, that's not my primary intent. Just be happy that I'm not sharing my disgust with Nancy Grace and the public outcry following the Casey Anthony verdict. Instead, I'm providing a brief primer on this whole 14th amendment business.

The 14th amendment has never been applied in this context by any president so there is no precedent and no jurisprudence analyzing what specific authority Section 4 of the XIV amendment confers on the president with regards to the public debt.

Construction, i.e. the interpretation of constitutional provisions can be somewhat difficult when the language of the provision is ambiguous or unclear. Ambiguity opens the door for interpretation by the court and raises the issue of strict construction versus broad construction. Strict construction means interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions, and societal changes. In contrast "broad construction" looks to what someone thinks was the "intent" of the framers' language and expands and interprets the language extensively to meet current standards of human conduct and complexity of society. Justices Scalia and Thomas are known as being strict constructionist, insisting on interpreting the Constitution in terms of how the provision was applied at its inception and in is historical context. 

In this instance, it is significant that the 14th is one of the Reconstruction amendments (the 13th, 14th, and 15th amendments, enacted between 1865 and 1870). The totality of Section 4, the section in which Clinton and others find authority for the President to raise the debt limit without congressional approval reads:
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. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Unfortunately, most people and the media quote only the first sentence. A big boo-boo in interpreting any law, including the Constitution, is divesting a provision from its surrounding language instead of analyzing the provision in its totality. 

The 14th amendment was added post Civil War or as some southerners prefer, the War of Northern Aggression. The intent at the time was to declare that the US was not going to pay any debts incurred by the Confederacy, which had borrowed money from England and France to help in its secession efforts. So Section 4 confirmed that all U.S. public debt authorized by Congress was legitimate and declared that neither the U.S. nor any state would be responsible for paying any debts incurred by the Confederacy for the war or the loss of slaves. The Confederacy considered slaves to be property and made some noises about reimbursement for the loss of their property.

The 14th amendment is also the source of the Citizenship Clause, the Equal Protection Clause, and the Due Process Clause. Arguably, those clauses were intended to be substantively more important than the Public Debt Clause. Narrowly construed, it may be argued that the Public Debt provisions were only to clarify that the United States was not going to be financially responsible for the debts incurred by the Confederacy and was not intended to confer power on the President to determine the amount of the public debt for which the federal government would be held responsible. A broader construction could certainly find that the language confers authorization on the President to increase the debt limit without congress' approval. However, given the conservative nature of the current court and the number of 5 to 4 decisions that have been issued by the court, decisions that reflect strict construction and narrow interpretations of the law, it certainly is not a given that the President could simply invoke the alleged authority of the 14th amendment and increase the debt limit. 

Bill Clinton is a lot more certain than some other constitutional scholars in his belief that the 14th amendment allows Obama to raise the debt ceiling without congressional approval. It may be possible but there is certainly the risk that doing so will provide the Republcans with the excuse to begin impeachment proceedings. Clinton managed to survive his impeachment relatively unscathed but I don't know if Obama has as much teflon coating as Bill Clinton and the charges may stick. Even if there is no impeachment effort, there will likely be a challenge in the courts as to the president's authority to act under the 14th amendment. Given the current conservatives on the court, it would likely be an uphill battle for the President and he could fare like Sisyphus and find himself unable to push his rock all the way uphill.

I'm not saying that president Obama shouldn't or that he should use the possible authority of the 14th amendment, just laying out the issues. The media headlines oversimplify the issues as they generally do when it comes to the law, particularly the Constitution. In law there really is no such thing as a simple "yes" or "no" when the question is, can I legally do that? It depends...

What I am challenging are those who shout for the President to just use the 14th amendment as if it is a given that such an action is prudent and will be successful. Our government has always been about compromise. When this country could not find a point of compromise on the issue of the expansion of slavery in a growing country, we engaged in a civil war that devasted the entire country and resulted in a major lose of life on both sides. Compromise is not a four-letter word and I shudder to think of the possible alternative.
Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this. --The Gettysburg Address, Abraham Lincoln, 1863


Nance said...

I've written the president and urged him to use this Fourteenth Amendment move as a last resort, because I believe the polls that say the people want the debt cliff avoided and I believe the reports that Wall Street and other large global financial entities do, too.

It would be the gamble of a lifetime. The impeachment hearings would commence, certainly. But the big money and the support of the people would be with the President. And he'd have blown his centrist cover at last, which means that, having nothing left to lose, he might decide to pull out the stops and finally go FDR for us.

It's easy for me to say, though. I know that.

Still, the GOP couldn't find the Clintonesque ethics cause for impeachment, so they'll obstruct governance and threaten the financial future of the country to force him to a questionable act. Might as well be hung for a sheep as for a lamb...that is, if he believes the catastrophe predicted. And if he does, no other action would BE ethical.

On the one hand, if he acts in time, the GOP will always say there was never going to be a catastrophe and Obama was just displaying impeachable arrogance. On the other hand, if the President waits to let the Social Security checks be delayed, the interest to go up on corporate loans, the global markets to taste meltdown before taking this unilateral action, he'll be hailed as a savior. Whether now or later, the whole thing will be tied up in courts until November, 2012.

I think the GOP will succeed in making Obama a one-term president no matter what it takes. His one hope is to act heroically and hope enough of us realize what he's done.

Personally, I'd rather sleep better tonight than I did last night. I'm desperately scared; we'd be without our pensions and forced to spend out what's left of our recession-ravaged savings (after we pay penalties for withdrawal and taxes on them) to live on. We would be in serious trouble.

And I'll bet you could show me the flaw in this thinking in a heartbeat!

Beth said...

I've been reading more about this today. More Democrats are calling for the President to use this. Although the President has made it clear that he does not want to do so, I think they're probably holding it back as a failsafe.

As I read more about it, I agree that it should not be used if possible. He might squeak by with it, but he might not; either way, much time would be spent on legal challenges, which would hamper him from moving forward on bigger issues.

I really think that a deal is going to happen, but it's going to go right down to the wire. Either way, I think our credit rating is going to be downgraded, especially if it's just a short-term deal. I'm hoping that we'll go ahead and make a deal, even if it's just spending cuts, and then in 2012, let the Bush tax cuts expire for those making $200K or more. Let the Repubs choke on THAT.

Big Mark 243 said...

Isn't the President a constitutional scholar? I am sure that he know better.

I think that if he was able to have addressed the country with the conviction of Abraham Lincoln at Gettysburg, I think he would be faring a lot better. Instead he seems uncertain and vulnerable, and it is really showing.

Leslie Parsley said...

Well, I'm not insulted because I know I know nothing about Constitutional Law. Obama does, though, and he's already said he wouldn't invoke the 14th. No doubt he's well aware of the fact that the GOP would used this as an excuse to try for impeachment. In fact, I have no doubt that that is what is motivating them in the deficit battle. They will go to any length to bring the man down - no matter how destructive it is to the country.

Sharing this excellent analysis on FB. Thanks.

Sheria said...

BM 243, I couldn't disagree more; I see nothing vulnerable and uncertain in the President's actions. Because he is indeed a constitutional scholar, he fully understands the momentous step that it would be to invoke a never before used provision to justify what could arguably be called a violation of the separation of powers provisions of the constitution, generating major costly and lengthy litigation.

This country has such a short memory. It wasn't that long ago that many of us criticized President G. W. Bush for his cowboy antics and his use of challenges to the "axis of evil" to cross his line in the sand. Now we are upset because we have a thoughtful president who recognizes that reasonableness is never unreasonable and that negotiation is the only reasonable path to conflict resolution. Americans watch way too much television and mistake it for real life. There is no denouement when the good guy scathingly chastises the bad guys and they drop their heads in shame while everyone cheers for the hero.

Vagabonde said...

I am not sure about the 14th Amendment. I have been sending emails and making phone calls but in this country I don’t know if this will help. In France people will go in the street and protest – here they stay at home and watch TV. Why don’t more people go out? Of course if I walked out here in the streets in Georgia I would be the only one since everyone is more conservatives than the Republicans.

UncleBad said...

The debt is valid. No one may question it. However, this doesn't give the executive branch the ability to borrow more money to pay it. This idea seems to violate the separation of powers on the most basic level.

Bucko (a.k.a., Ken) said...

Excellent post, our President has stated that he is willing to be a one term president if he can solve this, I hope it does not come down to the 14th.

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Punch said...

I found your blog through Nance and it is my good fortune.
I have learned to look at life with a skeptical overview, although it might be cynical or at best satirical, but it’s what I do.
I am thankful for your explanation of the 14th A. You put it into perspective with context, which I have not heard before.
I believe there is a well developed ‘let’s get the (your insult here)’ attitude toward the President, within the RNC. if not the GOP in general. If, and it is a big IF, President Obama is forced to use the 14th A., my prayer is that a part of the reasoning will be based on the well earned fact that anything he embraces is rejected out of hand by the GOP. For them to bring impeachment proceedings against him over this, would provide the jurisprudence you show now absent. (I know that is clumsy, it is meant as a question, please read through the grammar) If they beat him up on this, then the fun and games are over and they have to get back to work. If he wins (the down side) every Republican President from here on out will use it, carte blanche.
I welcome your helping me overcome this bitter attitude toward the fat cats who are eating the canary, while the whole wide world is watching.

jack-of-all-thumbs said...

As always, thanks for continuing to educate me. I knew that I was opposed to this remedy, but couldn't really defend my position until now.