The 14th Amendment Coup d'Etat

In your face, Tea Partiers!

Left-wing pundits like Keith Olbermann (Current TV), Lawrence O’Donnell (MSNBC), and Katrina vanden Heuvel (Washington Post) practically drool at the recent claim that President Obama can unilaterally declare the debt-ceiling law unconstitutional, break off negotiations with Republicans, and order the Treasury secretary to borrow hundreds of billions of dollars without consulting Congress.

O’Donnell revels in the Eureka! moment as he realizes Obama doesn’t need to negotiate with stubborn Republicans, he can just dictate terms thanks to this “nuclear option." Vanden Heuvel thinks the president should threaten to deploy it ASAP, “as a last resort,” to save those who have become dependent upon government for their comfort and care.

What has these leftists all atwitter? Believe it or not, it’s a novel application of the 14th Amendment to the U.S. Constitution that would make President Obama commander in chief of the economy as well as the military. Olbermann loves the “charm” of “stealing the Tea Party’s act” and turning their darling Constitution into their enemy.

Under the 14th-Amendment scenario, the president could tell the House speaker: "Take a hike, Boehner. I’m not cutting a penny of federal spending." Then he’d whip out the national credit card and run up our balance beyond the current $14.5 trillion. Meanwhile, Speaker Boehner would sit hangdog helpless in his office, gaze despondently at his gloomy poll numbers, and plan a lot more fishing trips with his grandchildren in 2013 when Obama is re-inaugurated, and Boehner is retired.

The Genesis of Pleading the 14th

The idea for the allegedly constitutional ploy appeared first on April 28, in a faux speech in The Atlantic, penned for the president by one Garrett Epps, author of a 2007 book on the 14th Amendment. Epps teaches “creative writing for law students” at the University of Baltimore, and apparently practices what he teaches.

Coincidentally, the very next day Bruce Bartlett’s column in the Fiscal Times appeared, advancing the same concept. These two apparently unconnected men sowed the seeds of this blooming progressive meme. By May, no less a figure than Treasury Secretary Timothy Geithner pulled out a pocket Constitution during a Politico-sponsored panel discussion, and read aloud a single sentence from the amendment.

“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.”

Geither actually paused before the final phrase, and said, “This is the important thing…shall not be questioned.” Over the past two months, “14th Amendment” has become a veritable battle cry among those seeking to maintain the tax-borrow-and-spend status quo.

Let’s take a brief look at the foundations of this revolutionary notion, evaluate its validity, and examine its implications.

Garrett Epps, in his fantasy presidential address, accurately points out that the 14th Amendment was framed to prevent Southerners (read Democrats) from grabbing a congressional majority, then using it either to force the federal government to pay off Confederate debt and compensate former owners of emancipated slaves for their losses, or to refuse to pay off obligations that the U.S. government had racked up in pay and pensions for Union soldiers. The amendment would prevent a sour-grapes faction from wrecking the credit of the reunified nation. Thus far, all sensible readers agree.

The pretend speechwriter then imagines his boss saying:

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.

However, should the president ever decide to speak such words in public, it would constitute another “insurrection or rebellion” against the United States of America -- a 14th-Amendment coup d’etat. As of this writing, the White House has refused to comment on the concept, insisting there’s no "Plan B" if talks with Republicans fail.

Constitutional Barriers

The major problem with pleading the 14th, so to speak, is the Constitution itself.

•        Article I Section 7.1 clearly states that “all bills for raising revenue shall originate in the House.”

•        Article I Sections 8.1 and 8.2 say only Congress has the power “to pay the debts” and “to borrow money on the credit of the United States.”

•        Section 4 of the 14th Amendment itself indicates that valid U.S. debt is only that debt that is “authorized by law."

Of course, to create a law, the Constitution requires concurrence of majorities in the House and the Senate. Thanks to veto-override power (Article I Section 7.2), a law doesn’t even require the president’s approval. The 14th Amendment did not overturn those sections of Article I. The final phrase in the first sentence of Section 4 (“shall not be questioned”) certainly didn’t negate an earlier phrase in the same sentence (“authorized by law”). In a nutshell, the power of the purse, both to expend and replenish, whether by taxation or borrowing, belongs to Congress, not to the president.

A Reagan Supply-Sider Flips

This makes Bruce Bartlett’s advocacy of the scheme even more puzzling…at first. You see, Bartlett was a domestic policy analyst in the Reagan White House, who actually helped write the Kemp-Roth bill of 1981 which put supply-side economics to the test by slashing the top marginal tax rates, among other things. The free markets passed the test with flying colors. So, in some ways, we have Bartlett to thank for the ensuing two decades of unprecedented American prosperity.

Somewhere on life’s journey, however, Mr. Bartlett careened off of the Laffer Curve. In 2009, he wrote a book subtitled "The Failure of Reaganomics and the New Way Forward." It garnered raves from Robert Reich, E.J. Dionne Jr., Andrew Sullivan, and other doyennes of the left. Bartlett has joined the church of latter-day Kenseyians. He has come to believe that his formerly beloved supply-side economics was a mere tactic, not a set of timeless principles. In other words, it worked in the 1980s, but we need something different now to meet the challenge of new market realities. In a word, we need Obamanomics, in all of its tax-funded stimulative glory.

Now, Bartlett says “a broad reading” of the 14th Amendment is justified, that practically every expense in the federal budget constitutes an indebtedness which “shall not be questioned," and that the president’s obligation to protect the credit of the United States is no less a duty than his obligation to guard the lives and property of all Americans. Bartlett tells MSNBC that if the government hits the debt ceiling during the congressional August recess, it would justify “the same kind of response that [Obama] exercises as commander in chief.”

Anti-Constitutional Stratagem

You don’t have to be a fan of the so-called "debt ceiling" to resist any attempt by the executive to usurp legislative power. In fact, you reasonably might pine for the pre-ceiling days when Congress had to authorize each new issuance of debt. At least that might force lawmakers to publicly grapple with the consequences of bloated government on a more regular basis.

But if the president should adopt this unconstitutional (really anti-Constitutional) 14th Amendment stratagem, it would up-end the Framers' system of checks and balances to an even greater degree than has misapplication of the “commerce clause” and the “necessary and proper clause” during the past seven decades. It would open the door to unlimited executive authority, the very threat against which the Framers sought to guard us. It would, in the language of the 14th, constitute an executive-led “insurrection or rebellion” against the United States of America. And as the amendment clearly states, we, the people, are not compelled to pay for those.

(Watch a discussion of this issue on PJTV's Trifecta)