Hot new idea: What if Obama just ignores Congress on the debt ceiling?

posted at 3:50 pm on June 25, 2011 by Allahpundit

Yeah, why not? That’s perfectly in keeping with Obama’s M.O. when the legislature gets in his way. Can’t get Congress to move on cap and trade? Make the EPA do something. Don’t want to beg Congress to authorize war in Libya? Send in the Air Force and forget about it.

Annoyed that Congress has refused to raise the debt ceiling because you can’t reach a deal on deficit reduction? Just keep selling Treasury securities and apply the proceeds to paying interest on the debt, then dare the House and Senate to do something about it.

[M]embers of Congress have tried before to sue the president for diminishing their legislative and appropriating power and have typically failed. In 1997, for instance, a small group of congressmen sued Office of Management and Budget director Franklin Raines, arguing that the 1996 Line Item Veto Act diluted their voting power as members of Congress. But seven justices of the Supreme Court disagreed, and did so largely by drawing from an earlier opinion written by Justice Antonin Scalia that denied environmental groups standing to challenge the government’s interpretation of the Endangered Species Act. In the majority opinion, then-Chief Justice William Rehnquist wrote that because the congressmen had not shown that their injury was “particularized,” and that the action of the President had not affected the congressmen in a “personal and individual way,” they did not have standing to sue.

In the case of members of Congress suing the current administration over the debt ceiling, the issue of standing would likely fall the same way. Louis Fisher, an expert on the separation of powers who worked at the Congressional Research Service for over twenty five years, wrote in an email that “case law is quite clear that a member of Congress, even if joined by a dozen or two colleagues, cannot get standing in court to contest a constitutional issue.”…

But even if standing could be established and the Obama administration gets taken to court, some legal experts note that an additional argument of surprising strength could be made: The government cannot legally default on its debts. Former Reagan official and maverick conservative budget wonk Bruce Bartlett has suggested as much by invoking Section Four of the Fourteenth Amendment, which says that “The validity of the public debt of the United States, authorized by law … shall not be questioned.” Although there has been little litigation or discussion of this section, it could be read to imply an absolute firewall against statutory limits on paying or devaluing the debt.

Now there’s a campaign platform I’d like to see in time for the 2012 election: “The Constitution lets me run up as much debt as I want and there’s nothing your representatives can do to stop me.” Unchecked executive power and runaway spending — a magical combination. Reminds me of critics of the War Powers Act who claim the statute is unconstitutional because the president has inherent authority under Article II to wage war, especially in cases of national emergency. (Never mind Congress’s power to declare war under Article I.) Supposedly, the argument goes, because defaulting on the debt would also constitute a national emergency, the president has inherent power to prevent that default from occurring. For how long, though, is anyone’s guess under this theory; the War Powers Act tries to balance legislative and executive interests by letting the president respond to a true military emergency for 60 days without needing approval, but under the TNR/Bartlett theory, presumably he could keep piling up debt in perpetuity. Sounds like a plan. I’d be morbidly curious to see the public’s reaction if he tried it. Opposition to raising the debt ceiling is overwhelming — 19/47, according to a Gallup poll taken last month — but another poll taken a few days later showed 56 percent saying that default would be “disastrous” for the economy. If talks with the GOP broke down and he did take emergency action to stave off a default, I bet he could get away with it if he emphasized that it was an emergency stopgap measure until negotiations resume and that he was committed to trillions in spending cuts as part of any deal. Can’t wait.

Here’s Krauthammer paying tribute to yet another example of Obama doing what he wants to do even if you don’t like it. Click the image to watch.

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