As congressional debt-ceiling plans founder, eyes turn to executive option

“Rather than working these last few days towards a solution to this crisis the way the Republican majority in the House has, the Democratic najority here in the Senate has been wasting precious time rounding up `no’ votes to keep this crisis alive,” he said on the floor of the Senate on Friday. “Rather than being responsible and doing their duty and come up with a bill that can pass, they’ve been busy signing people up for the `not good enough’ caucus and ginning up opposition to everything else.”

The prospect of Congress failing to settle this issue in the time remaining is also reviving a controversial plan to invoke executive powers to ensure that the nation meets its debt obligations.

Treasury Secretary Timothy Geithner set off alarms across the political spectrum in May, when he invoked an obscure clause in the 14th Amendment – “the validity of the public debt … shall not be questioned” – in a meeting with reporters on the debt crisis. Treasury officials later clarified that the Secretary, in fact, saw the debt limit as a legal obligation.

But lately, Democrats are reviving talk that should Congress fail, there is a last-ditch, executive option.

“If nothing passes out of here and the president is sitting at his desk on Aug. 2 with no legislation, what should he do to make sure that the country doesn’t go into default?” asks Rep. James Clyburn (D) of South Carolina, the third ranking House Democrat.

“Every president has used executive power to do big things,” he adds, citing President Truman’s integrating the Armed Forces and President Eisenhower’s integrating public schools. Invoking the 14th Amendment would be a “defining moment” for the president, he added.

House minority whip Steny Hoyer (D) of Maryland said on Thursday that the president should use 14th Amendment to avoid default, if Congress fails to act. Citing President Clinton, he said: “Better to take the action and find out later that perhaps he went beyond his authority but at least protected the credibility of the United States of America.”

But critics say that such a resort to executive powers also tends to confirm fears in world financial markets that Congress in not able to set the nation on a sustainable fiscal course.

“Obama’s invocation of the 14th Amendment would broadcast the fact that the two elected branches were incapable of bringing outlays and revenues into better balance and incapable of lifting the debt limit, even when they were told repeatedly the danger to U.S. financial credibility, the damage to U.S. bond ratings, and the likely increase in interest rates across the board – further compounding the deficit problem and placing additional burdens on private citizens and the prospects of economic recovery,” says Louis Fisher, who recently retired as Congress’s top adviser on executive powers at the Library of Congress.

The protracted ligation sure to be sparked by use of the 14th Amendment would also have unintended and harmful consequences, he adds. “Throughout that lengthy and uncertain process, with the possibility at the end that the Court would either decide against the administration or rule that it has no jurisdiction, the economic health of the United States would be subject to regular and damaging blows,” he adds.

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