Democrats want courts involved in debt-limit standoff

posted at 8:41 am on January 8, 2013 by Ed Morrissey

So sue me. That schoolyard taunt may become political strategy, according to The Hill, as Democrats insist that the President can raise the nation’s debt limit unilaterally.  Why not get the courts involved by having Barack Obama do so and force Republicans to sue him in federal court?

And you thought that the trillion-dollar coin idea was as dumb as it gets:

Democratic lawmakers are urging President Obama to force Republicans to take him to court over the controversial issue of raising the debt ceiling.

They believe the Supreme Court will have to ultimately resolve the battle over spending now raging between Republicans and the president.

But how the courts will rule is shrouded in uncertainty because little case law exists to serve as meaningful precedent, say legal scholars.

Democrats in Congress argue Obama should not feel constrained by the 1917 debt limit law, which the federal government is projected to hit in late February, because it conflicts with other laws.

“The president I think has the authority under the Constitution and under the various statutes that are passed — if nothing is done — he must do something about paying the bills,” said Sen. Tom Udall (D-N.M.). “That issue may well go to the courts in our system.”

“He’s got two different statutes telling him different things and he can resolve — multiple statutes telling him different things — he can resolve that issue,” Udall added.

Supporters of this newfound presidential power over statute have been pointing to the 14th Amendment, specifically its fourth clause: “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.”  However, that passage doesn’t give the executive branch authority to do anything, and in fact requires that the debt “be authorized by law.”

Who does the authorizing?  The more directly relevant Constitutional reference comes in Article I, Section 8, which specifically assigns Congress the authority to borrow: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow money on the credit of the United States[.]“  The debt limit itself is Congressional authorization for the executive branch (through the Treasury) to borrow what is needed.

Whether one likes it or not, the debt limit belongs to Congress.  The President can neither borrow or spend without authorization from the legislative branch.  That was a key separation of power that the founders intended to keep the executive from overwhelming the people’s branch of government and to prevent the creation of tyrants in democracy’s clothing.  Federal courts would take almost no time in declaring an Obama hike of the debt limit unconstitutional, and hurriedly exiting the debacle between the other two branches of government.

Say, does anyone remember when Democrats insisted that they were a bulwark against what they (ignorantly) called “the unitary executive”? Good times, good times.


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