No clear path for Barack Obama to act alone on US debt cap - experts

Jan 12 2013, 22:30 IST
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SummaryThe 14th Amendment is best known for extending civil rights protections in the wake of the Civil War.

The White House would be taking a risk if it tries to make a constitutional end-run around Congress' authority to raise the debt ceiling, legal experts said.

The "public debt" clause of the 14th Amendment is being cited by a number of lawmakers as giving President Barack Obama a legal way to issue debt and pay bills, working around the debt ceiling and avoiding default.

The 14th Amendment is best known for extending civil rights protections in the wake of the Civil War. The amendment's fourth section was designed to guarantee Union debt incurred during the war, including compensation due to Union soldiers and their widows.

The clause states: "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."

On Friday, Senate Democratic leaders told Obama to be ready to take "any lawful" steps to ensure that the United States did not trigger a global economic crisis.

Obama has said he would not negotiate with Republicans in Congress on the debt ceiling, increasing the prospect that they may try to block an increase in the borrowing limit. Democrats hope to avoid a replay of the 2011 debt ceiling deadlock that pushed the country to the brink of default.

One congressional aide said using the provision was the only potential option available to Obama if Congress balks.

But some legal scholars say the provision does not give the president the authority to raise or ignore the $16.4 trillion debt cap.

"I don't think the language of the 14th Amendment authorizes it," said Erwin Chereminsky, professor at University of California Irvine School of Law. "The debt ceiling is set by statute, and the president can't change statutes unilaterally."

Eric Posner, a University of Chicago law professor, said the provision is vague and "does not implicitly give the president authority to do anything."

"It's not a very strong legal argument," Posner said. The public debt section's only Supreme Court test, in 1935, had nothing to do with the debt ceiling.

"Nobody really knows what would violate that section (the 14th Amendment) since it's so far removed from what the original idea was," said Gerard Magliocca, a professor at Indiana University School of Law. "There's not much law on it, so it's really hard to come up with any firm conclusions."

On Dec. 31, the Treasury reached the limit on how much it

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