By now you probably have heard that Democrats are begging President Obama to invoke the 14th Amendment to the United States Constitution as a way to end the debt ceiling. This Amendment was ratified on July 9, 1868 and is referred to as one of the Reconstruction Amendments.
Section 4 the operative part of the 14th Amendment for the debt debate reads:
“The validity of the public debt for the United States by law including debts incurred for paymnt of pensions and bounties for services in suppressing the insurrection or rebellion shall not be questioned but neither the United states nor any state shall assume or pay debt obligations incurred in aid of the insurrection or rebellion against the United States or any claim for the loss or emancipation of any slave, but all such debt, obligations and claims shall be held illegal and void.”
The potential legal problem comes in with Article I Section 8 of the United States Constitution which gives only Congress the sole power to borrow money on the U. S. credit. This would require presdient Obama to bypass Congress to invoke the 14th Amendment to solve the Debt Crisis. The Constitution makes very clear that only Congress has the power to borrow money.
Legal experts say it would be very hard to challenge Obama in court. They point out it is not enough to claim Obama is overstepping his legal authority. In order to sue you would need to prove injury in fact by Obama’s actions.
One method would be for the Tea Party Republicans in the House to sue by claiming their Constitutional authority was usurped as stated in Article I Section 8 of the Constitution. Even using this method some legal scholars still believe getting into court would very difficult. http://www.huffingtonpost.com/2011/07/26/14th-amendment_obama_n_910398.html
Congressional Republicans disagree and Rep. Tim Scott (R-SC) believes it would be an impeachable offense. Sen. Ron Johnson (R-WI) said Congress would take him to court if he invokes the 14th amendment.
Lawrence Tribe a constitutional scholar at Harvard argues that only Congress has the authority to regulate public debt. He noted that if Obama should try attempt to continue borrowing without the approval of Congress he would therefore violate the U. S. Constitution. Tim Geithner the Treasury Secretary agrees with this assessment. This could be why Obama seems reticent to invoke the 14th Amendment. On August 3, 2011 however, Obama may well be forced to look at three options; raising taxes without Congressional approval, cutting spending without congressinal approval, or raising the debt limit without congressional approval.
That brings us to the Supreme Court where it is possible to make the case many recent decisions are political or ideological and have only a weak basis in law for the precedents set in the majority opinions. Justice Antonin Scalia has already denied equal protection to women based on the 14th Amendment Equal protection Clause with his doctrine of original intent as the deciding factor and equal protection for women was not an original intent according to Justice Scalia.
This Roberts Court decisions all are predictably 5-4 on every decision that has ideological implications and the basis for the decision seems more to be based on partisan ideology and philosophy than sound judicial principles and precedent. If a case on Obama using the 14th Amendment to raise the debt ceiling reaches the Roberts Court it will vote 5-4 against Obama even if Scalia has to invent an original intent. This may be the biggest reason Obama is staying away from the 14th Amendment even as it would seem to give him the power to invoke it in the case of the Debt Ceiling Crisis.