Written by Winston P. Nagan   

In a move that is largely unprecedented the Republican Party, the party that inherited a budget surplus has discovered that its reckless borrowing during the Bush Administration, and its equally reckless and fanatical support of massive tax cuts for the super rich, have now overnight discovered fiscal prudence. They therefore seek to hold the administration and the Democrats hostage to a United States default on the US national debt. Every articulate professional group from economists to businessmen and even Wall Street have stressed that it would be a disaster for United States to default on its debt obligations. The media have reminded us that a default would mean significant loses to ordinary Americans in higher interest rates and less access to credit. Many Republicans conceded these points as well. However, there is a critical fanatical fringe in the House of Representatives who seem to welcome a United States default as a golden political opportunity for them.

The negotiations have been desirably conciliatory to Republican interests. Indeed the most recent democratic effort of Senator Reid contains no proposals for taxing the rich or raising the taxes on anyone, a core tea party sticking point. It is apparent at present that even this rather pro-republican proposal is not acceptable to the new generation of Republicans.

Recently in late evening news show (The Ed Show) a poll was conducted on the question of whether Republican intransigents were genuinely focused on the debt or whether the real agenda of the party leaders is to deny the President any legislative accomplishment, even one that reflects their long standing interests. The polls suggested that over 90% of those responding, said the Republicans, were moved exclusively to get rid of the President. The objective here was to make the Nation ungovernable under a black President. For some Republicans their most urgent agenda seems to be to replace the President even if it destroys the economic sovereignty of the United States. In short, what the President’s efforts at negotiating have shown is that the negotiating agenda has nothing to do with the debt problem or the economic security of the United States. The real agenda is him and how to get rid of him.

Does the President have any options? Assuming that there is clear legislative dysfunction and the Congress is incapable of acting to protect a vital national interest of the Nation, its economic security, what are the President’s options when the government is essentially frozen on this important issue? Some opinion leaders have suggested that the President has a Constitutional option. The 14th Amendment, Section 4 reads in part that “[t]he validity of the public debt of United States, authorized by law, ... shall not be questioned.” This section contains no qualifier as to how this Constitutional mandate is to be specifically protected. There are two possibilities. There is a generic competence stipulated in Section 5 that “the Congress shall have the power to enforce, by appropriate legislation, the provisions of this Article.” This generic competence covers presumably Sections 1, 2, 3 and 4 of the 14th Amendment. In practice of course other branches of our government including the Courts and the Executive have enforced parts of the 14th Amendment. The question then is, is there anything in the Constitution that specifically limits the President from enforcing this Constitutional mandate or is there an element in the Constitution that empowers the President to do so? Article II, which deals with the Executive power, requires the President to take an oath that he will “faithfully execute the office of the President ... and will, to the best of [his ability] preserve, protect and defend the Constitution of United States.” The last phrase in this sentence should be read as defending the sovereignty of United States and if it is read in the light of the 14th Amendment, Section 4, it could be seen as an obligation to protect the economic sovereignty of the Nation. Additionally, in Article II, Section 4, the President has a Constitutional obligation that he “shall take care that the laws be faithfully executed.” It would appear that the flexibility of institutional practice regarding the enforcement of the 14th Amendment, and the specific powers of the President as indicated in Article II provide sufficient textual support for the President to make a determination that if Congress refuses to enact policies to respond to the national debt, that Congress is in effect in violation of the Constitutional provision that the validity of the public debt shall not be questioned. In short, it is not that Congress is verbally questioning the debt, it is by its practice that it is constructively doing so. In this vacuum of dysfunction, clearly the President has a Constitutional obligation to defend the full faith and credit that rides with the public debt.

Additionally, Congressional inaction regarding the raising of the debt limit could seriously undermine an important aspect of the sovereignty of the Nation, its economic sovereignty. The President has an obligation to defend the sovereignty and the economic sovereignty of the Nation. Therefore, there may be a Constitutional obligation on the part of the President that he by executive order raise the debt ceiling until after the next election, or until such time as Congress can agree on passing appropriate legislation to respond to the crisis. Once the debt ceiling has been raised, the naysayers in Congress would not be able to enact legislation to revise the President’s order, unless they compromised their extremist position in order to bring Congress into the game. This may be the only option the President has. It is an option that the President and his advisors should seriously consider.