One much-debated way out of the debt-ceiling stalemate is for President Obama to raise the limit by himself by invoking an obscure provision in the 14th Amendment. The New York Times‘ legal reporter Adam Liptak runs down the pros and cons of this “constitutional escape hatch.” Bill Clinton recently said that, were he still presdent, he’d invoke the 14th in a heartbeat, but Obama seemed seemed to rule it out. “I have talked to my lawyers,” he said. “They are not persuaded that that is a winning argument.” (Liptak detects some wiggle room between the lines there.) One argument against unilateral action by the president, says Liptak, is that it’s not clear the nation’s creditors would be sufficiently reassured to go on lending. Then there’s the likelihood that the courts would weigh in if Obama acts alone. On the other hand, that’s not certain, notes Liptak; and anyway, while the president “can move quickly … court cases take time.” A more serious danger for Obama is that Congress would move to impeach him. But while House could convict, it’s unlikely the Senate would. Legal scholars, meanwhile, are divided on the question, but plenty are supportive of the president’s prerogative. Some say the provision doesn’t even apply to the president, only to Congress; others that the president may do what he wants in an emergency, with or without the authority of the 14th Amendment. And then there’s the school of thought known as “popular constitutionalism,” according to which “the meaning of the Constitution … is in the end what the public believes it to be.” In other words, Obama could move unilaterally and the American people would in due let him know, by democratic means, whether their understanding of the provision jibes with theirs.
• ‘The 14th Amendment, the Debt Ceiling and a Way Out’ [Adam Liptak, New York Times]