The President announced a day of shuttle diplomacy on Monday, with consecutive meetings with Harry Reid and Mitch McConnell aimed at “negotiations to find common ground on a balanced approach to deficit reduction.” Notably, House Speaker John Boehner is not part of this round of meetings; there was this assumption that Boehner and Obama would have to work out the differences between the two of them and arrive at a solution, but the White House has dismissed that for now.
At the beginning of the month, July 4 was seen as a soft deadline for arriving at a solution on the debt limit and deficit reduction. That doesn’t appear likely now, although the meetings next week look like the last-ditch effort to find a deal. What happens if that breaks down? Treasury has given the hard deadline as August 2, after which the debt limit will have been reached, and extraordinary measures by Treasury no longer effective. But money will still be coming into the Treasury on a rolling basis, just not enough to meet current commitments.
At this point the White House has a few options. They can pay off a portion of the creditors, while giving warrants or IOUs to everyone else; they could simply default on some payments, triggering a fairly catastrophic series of events; or, they could ignore the whole concept of a debt limit and continue paying out debt on Constitutional grounds. This third option is getting more and more play, including in the New Republic:
Jonathan Zasloff, a professor at the UCLA School of Law who has discussed this idea on a blog that he writes with several other academics, told me that while an order from the president for the Treasury Department to continue issuing new debt sounded extreme, it was unclear who could prove sufficient injury from the decision that would qualify the person to sue the administration in court. “Who has some kind of particularized injury, in fact?” Zasloff asked, and he could not come up with a satisfying answer.
Leaving Congress aside, it appears the only possible party to a suit challenging the administration’s ability to exceed the debt ceiling would be a character that almost seems designed to elicit zero public sympathy: those who purchased credit default swaps which would pay off in the event of government default. Charles Tiefer, a law professor at the University of Baltimore, told me that Congress could pass a statute that strengthened the ability of this group of investors to sue as an injured party. But this statute, of course, could be filibustered in the Senate or vetoed by the president. Moreover, it would force Republicans to defend the right of those who had hoped to profit from a national default or dip in creditworthiness to sue the government because their payouts had been prevented.
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.
Is it really such an open and shut case? Obviously it has not yet been challenged in court. Yet the intent of the Fourteenth Amendment is pretty clear.
Still, given the current chief executive, I’d have to say this falls more along the lines of the theoretical. It would be very partisan to ignore the debt limit, and it really wouldn’t fit with the stated goal of the President to responsibly manage the nation’s deficit. The President has been talking about a grand bargain to reduce the deficit since before his Presidency. Most, if not all, of his economic team wants to see that happen. I’m not sure they see the debt limit as a constraint so much as a forcing event.





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I say choose the option that allows the Treasury to continue issuing debt, leave the bondholders holding their johnsons citing the 14th Amendment provision as authority, and let’s watch a few Republican heads explode while they trash the 14th Amendment yet again.
They can’t have it both ways, citing the 14th when they wanna get their boy in the White House, or when they want to confer citizenship on lifeless corporations and then denying its legitimacy when it’s applied in a way that benefits us little people and the country as a whole.
Sorry, but this tactic would undermine Obama’s real goal, which is to totally repeal the New Deal.
You lost me with “White House could”…..
Sometimes it’s just time for a good laugh……..http://jezebel.com/5814870/when-kathy-griffin-met-michelle-bachmann
“…given the current chief executive, I’d have to say this falls more along the lines of the theoretical”
And how. I just realized how a personal experience of my own relates to Obama’s problem. In law school I took a negotiation course. In it, all the mechanics of proper negotiation were drilled into us – listen to the other party’s needs and desires, expand the pie, talk things out: textbook ‘Getting to Yes’ stuff. But, there was one student who was an animal in negotiations; she played nothing but zero-sum hardball. In the one negotiation I did with her she went right for my balls, in the one negotiation I did with her as a partner ended in deadlock because one of the guys were were negotiating against was equally pig-headed.
It’s all fine, but guess who got [repeatedly] praised by the professor for being such a great negotiator?
Anyway, it brought to head a real problem in ‘proper’ negotiations: what do you do when you’re faced by a snarling adversary? You get down to their level. What Obama’s doing is still flipping through his negotiating class notes and trying to be the big man. Meanwhile, his constituents get nothing and his adversaries get everything.
Disappointment.
“Meanwhile, his constituents get nothing and his adversaries get everything . . . ” and we get screwed.
The debt limit problem will be resolved with the dramatic, last minute, compromise repeal of medicare and social security. All funds accrued to these will be repossessed and used to
pay down the deficitfund tax cuts for billionaires. A new, bipartisan bill, “the serfdom act” will be proposed and moved rapidly through both houses. After that, history (for the United States at least) ends.Something like that… :-(
You know, maybe Obama could also send troops into war and tell the Congress and the American people that they are not in “hostilities” so he is not violating the War Powers Act.
Or perhaps he could wait until gas prices have come down to release oil from the Strategic Petroleum Reserve so he could say that he is “doing something about the economy.”
Or, better yet, perhaps he can brag to the troops at Fort Drum, New York, how he gave an Congressional Medal of Honor to a living soldier for duty in Iraq, despite the fact that that soldier was actually in Afghanistan, and that he died in battle.
Perhaps Obama could do all of these things. But he better hurry up – his time in office runs out in 19 short months from now.
I’ve done those types of “Getting to Yes” negotiating classes. As you indicate, it’s all very well, if the “other side” is actually, you know, somewhat honorable, somewhat honest & somewhat willing to have both sides meet somewhere towards the middle.
In my life, I’ve had to negotiate with all sorts, and the ones that are willing to play the hardest of hard ball just laugh their butts off at someone attempting to “play by the rules” and/or make nice. They don’t give a sh*t how they appear or what you think of them. For them, it’s WIN-LOSE, not win-win. And they’ll do *anything* to WIN (lie, cheat, steal, blaspheme, you name it), and the more maximum the damage that can be inflicted on the “other side,” the better.
There’s no point going into a gun fight with bare fists while discussing the Marquess of Queensbury rules….
How dare you speak about Mitch McConnell, John Boehner, Eric Cantor, Fox PAC, The Koch Brothers, (and a whole buncha etals) in that tone. /s
This is not new. Several experts have been discussing this for months. The debt limit is purely arbitrary and flies in the face of the Constitution. It has gotten almost no traction in the media which trumpets the demise of the middle class as the only real solution. Will Obama take this road? I’m thinking he’d end the war in Afghanistan first which is to say never. He literally could issue an executive order and be done with it. Bush had no hesitations about using the powers he had (and some he didn’t). But Obama just is not going there. He wants it to be something his republican “friends” fully approve of.
Best laugh I’ve had all day. Thanks!
It could have been passed via reconciliation when O had majorities in the House and Senate according to the GAO.
Some of you guys act like this is something new, that politicians in this country always behaved themselves up until our generation or that it’s only our generation who won’t take it to the streets and demand reform, etc. You should read history. There has always been enormous pressure in this nation to make the rich even wealthier, the leadership more powerful, the poor more downtrodden. And while it’s true that there has not yet been a large scale general strike or millions of people pouring out into the streets, I have no reason to believe that it won’t happen if conditions are right. Comfortable people don’t start revolutions and compared to other times in our short history, we ain’t seen nothin’ yet. The rich and powerful always go too far. Greed can’t help itself, any more than a deadly virus can’t help but destroy it’s host, to it’s own cost. I’m not ready to throw up my hands and wear a sandwich board proclaiming doom yet. I don’t know when it will happen or what will trigger it but happen it will. The very second that enough Americans become uncomfortable enough. There will be a tipping point. There always has been in the past and I have no reason to think any of that has changed suddenly just because it’s us and not our grandparents living it.
Anson@9: google Salvatore Giunta. Or just “Giunta.”……..
He was too busy being bipartisany, though I have never figured out what was bipartisan about acceding to Republican demands on tax cuts for the rich while throwing the 99ers under the bus. I guess I’m a bit thick.
No we are just not in the top 1%.
Pay everybody except the Congressional legislators. All of America would support the president and that guy from Wisconsin who cannot live off of his $165K salary would be begging to raise the debt limit. All Congressional legislator’s healthcare retirement and other benefits would be canceled.
No one will enforce the law against Obama. So he can ignore the law and do anything he wants to do. “Constitutional Scholars” might as well be archeologists.
The debt limit is a gun that is not loaded. Tomorrow, Geithner could mint two trillion-dollar coins, swap them for $2T of Treasury bonds that the Fed holds, burn those bonds, and thus shrink the national debt by $2T without putting another penny into circulation.
http://my.firedoglake.com/wigwam/2011/06/24/of-debt-limits-and-the-emperors-clothes/
The beauty of that is even if Congress passes a law to strip the Secretary of his coin seigniorage power by veto-proof majorities, the 10 days the President is given to sign or veto a bill is more than enough time to mint away the entire public debt. :o)
This law professor’s idea is an idiotic academic proposal.
It doesn’t matter what some professor or even big team of blue ribbon people might think, no investor will buy the bonds since there is some question about their legality.
It shows a basic misunderstanding of US Government bonds. Investors and individual citizens buy them because they are perceived as absolutely guaranteed–not even a little doubt. With even a tiny, tiny doubt introduced, no one will buy them.
Yes, if this tactic was tried and then the Supreme Court eventually ruled that the bonds were legal, yeah, they’d be bought. But, until then, there would be a cloud over them and no one would buy them. So, you could issue the debt, but no one would fund it, so you STILL have no money to pay anything.
IOU’s? Government workers, contractors and others wouldn’t accept them for very long.
Anyway you slice it, totally unworkable.
Excellent post. You should consider expanding that into a diary. Thanks.
You mean Constitutional “scholars” like President Putty?
If the President claims the power to arrest and imprison anyone he deems a threat and keep them in prison forever; if he claims the power to have anyone he deems a threat to be murdered without evidence or process of law; if the President can take the nation to war and spend money without appropriation of the congress, why would he care about such a silly thing as a debt limit?
Which is why the PTB are ramping up polices and surveillance powers, paramilitary forces are training and operating within our soil, Posse Comitatus is an old dream. They know what is coming and their response will be overpowering and horrific. Unless we have responsible leaders in power to deal with the MOTU’s and strike new grand bargains, ala FDR, they will take over and screw this country to the ground. Then, it’s a long term struggle, blood, and death for all –life of man, nasty, brutish, ugly and short. This will also come to the MOTU’s, in time. When enough of them feel sufficiently threatened and die in sufficient numbers, things will change. Hopefully, an FDR will rise up to prevent that, but I am not optimistic.
Navigating around the debt limit might not be comparable to murder, unjust incarceration, or waging war as you suggest.
It’s serious business of course, but not much more. There are political winners plus losers who can redeem themselves in time.
Still it’s too risky with an election cycle brewing. I don’t think the administration could cobble together a game plan fast enough to pull this off. They’re all conservatives in drag, don’t you know?
All that means is a natural aversion to placing one’s hand on a hot stove. Never do anything without knowing the outcome beforehand. The academics never tried this, but should.
Dude! I love it.
Even a veto-proof majority couldn’t stop Geithner from minting a $2T coin with which to buy up the $2T of Treasury bonds held by the Fed (from QE1 and QE2, etc.) Then, no more debt-limit crisis.
That’s what I’ve been saying all along: The President, through his Treasury Secretary, could declare this as rising to the level of national emergency and, on Constitutional grounds stating that the U.S. cannot default on its debts — and with Congress having passed budget resolutions that by definition will exceed the current debt limit — rule that the limit itself cannot and indeed must not be enforced.
“I’m not sure they see the debt limit as a constraint so much as a forcing event.”
They see it as an opportunity to further erode the Middle Class safety net and preserve the wealth of the rich (and their campaign contributions), while being able to pretend that “the Republicans made us do it”. More wonderful Kabuki theater from hell-no-we-can’t Obama and the do-nothing Dems.
There are only two Constitutional remedies to Executive abuses, an election or impeachment. The President, if he wanted to, could be negotiating a budget agreement w/ Boehner, Cantor, Ryan, Kyle, et. al. from a windowless room in Bagram. Admittedly, that’s a little extreme. But telling the Repubs that there will be no default on U.S. debt regardless of what they think or do, and that if necessary, POTUS will brand them as enemies of America, a dangerous fifth column bent on destroying the very people who built the country.
Forgive my ignorance of history – when the debt limit was increased during the Bush years, were there legislative tradeoffs demanded by legislators of either party? Wasn’t it just done, grumbling aside?
So in theory a representative or a senator could own a credit default swap which would pay off if the government defaulted. If I was in that position, I would want to be on the negotiating team. Then if things looked like a compromise was in the works, I would quite or threaten a filibuster or the defeat of all who vote for compromise and against a default. What kind of patriotic citizen buys and sells these instruments?
You saw this tactic during the 2000 election recount in Florida. The Repukes never give an inch and as has been stated before the republican idea of compromise is…..DO IT MY OR I HIT THE HIGHWAY (see Eric Can’t-whore).
Obama is just getting his little chess playing face on, preparing for the day, probably about August 1st, when he is “forced” to give the Republicans everything they wanted and a lot more. He will “agonize” over hurting senior citizens, kids and poor people, but he just can’t help it. Those mean Republicans demanded (some of) it, and they are so mean. He just can’t stand up to them, especially if it makes Wall Street mad. This is really for the best. It is not like he hasn’t played this game before.
I believe 12th dimensional chess is pretty easy. Get all your base (pawns) up on the top and throw them off. Declare victory. Blame Republicans.
Or perhaps the majority leader and never let it come up for a vote. Eh??
The white house seems totally oblivious to one simple fact. To the republicans electing a black man as president effectively ended the country as we know it (well, as they know it anyway). The only chance they have at restoring white supremacy is to cause a national cataclysm. It also worth noting that no republican who does a deal with the black guy in the white house has a chance of survivng a primary. Remember in december when teabaggers screamed about republicans do a deal to extend the Bush tax cuts. Ya they screamed about tax cuts, the republicans can’t support any deal.
Agree, except he wishes to undermine and do away much of the Progressive Era legislation and government roles, alone with FDR’s New Deal and LBJ’s Great Society.
Oh, and destroy the Democratic Party as a viable political force.