New York Civic: Clinton Suggested Obama Resist Threats of Default By HENRY J. STERN

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STERN_Henry-J-President-of-NY-Civic-amd-Former-New-York-City-Parks-Commissioner Journalism is habitually critical of government officials and bureaucracy. Most people, when polled objectively, tell us that they hold public officials in modest regard. Traditionally, legislators rank substantially lower in public esteem than executives. Notwithstanding those sentiments, however, voters usually re-elect their local representatives, unless the public mood shifts substantially, as it did in 2010.

The popularity of the President, a governor or a mayor will vary during his term according to the course of events, and the way that elected officials respond to the challenges of the day. Governor Cuomo rose after his first six months as a result of his success in dealing with the legislature. President Obama, on the other hand, has lost public esteem in the wake of the dispute over the national debt ceiling, even though he acted responsibly on that difficult issue. 

The President's decline in voter support came because, in yielding on many points in order to avert default, which he believed would be a national disaster, he was widely perceived as weaker and less effective than Speaker Boehner and Senator McConnell, the Republican Congressional leaders who threatened him, compelling the Democrats to accept substantial budget cuts which, if implemented, would significantly sabotage national programs, many of which are mandated by law.

In an interview two weeks ago with Joe Conason, editor-in-chief of the National Memo, former President Clinton said that he would invoke the Constitutional option "without hesitation, and force the courts to stop me" in order to prevent a default should Congress and the President fail to achieve agreement before the August 2 deadline.

"'I think the Constitution is clear and I think this idea that the Congress gets to vote twice on whether to pay for [expenditures] it has appropriated is crazy,' he said.

Lifting the debt ceiling 'is necessary to pay for appropriations already made,' he added, 'so you can't say, 'Well, we won the last election and we didn't vote for some of that stuff, so we're going to throw the whole country's credit into arrears.'"

The Constitution and the 14th Amendment authorize the public debt and provide that its validity shall not be questioned. We quote the relevant passages:

Fourteenth Amendment, Section 4: "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. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void."

The first sentence states that the United States must pay its debts. The pattern of imposing a ceiling on the national debt began with a law passed in 1917, after the Second Liberty Bond act. Since then, the ceiling has been raised on numerous occasions, in recent years with increasing frequency. Most of these increases were approved without controversy, since they simply applied to existing obligations.

The authority of the Congress to add to the national debt is specified in the Constitution.

The Constitution of the United States:   Article I, Section 8:

"The Congress shall have the power: …

"2. To borrow Money on the credit of the United States; …"

It is certainly arguable whether the blanket Constitutional authority trumps the frequently amended debt ceiling statute. Since Article I gives the Congress the specific power to borrow Money, and the 14th Amendment provides that "the validity of the public debt… shall not be questioned", it would seem that Congress cannot, by statute, decline to pay public debt that has been legitimately incurred, pursuant to appropriation. That would include obligations under Social Security or comparable statutes.

If it desired to reduce the national debt, Congress could, for example, repeal Medicare, or its Section D regarding the Federal government's obligation to pay billions of dollars for drugs, but it cannot simply refuse to pay the bills that come in pursuant to legitimate appropriations. Congress can refuse to build aircraft carriers, or any other equipment, but it must pay for what has already been built. Similarly, it can terminate employees to reduce headcount, but it cannot fail to pay people for services properly ordered and performed.

Of course, we know from Bush v. Gore (2000) that the law of the land is what five justices of the Supreme Court say it is, and in the current political configuration of the justices, the narrow conservative minority may be influenced by who is on which side in the controversy. Then again, they may not, or take a different view of the situation.

A decision by President Obama to follow his predecessor's advice would, most likely, have provoked what could be called a constitutional crisis, since its outcome would affect the powers of different branches of our tripartite government. That would be unfortunate and unsettling, both to the United States and to world markets. That being said, the markets seem to have been doing pretty badly anyway.

The alternative, however, submitting to the will of the House of Representatives, gives the national legislature the power to reverse public policy and overturn previous commitments to the American people, not by passing legislation to that effect, which is their right, but simply by declining to raise the debt limit, a maneuver that requires no more than 41 Senators OR 218 representatives.

That would result in a major shift in the balance of power between the executive and legislative branches. If it were done by legislation, it would face challenge before the judiciary, which would ultimately decide the issue, subject to a Constitutional amendment. To attempt to accomplish such a seismic shift in the American system of checks and balances, simply by one branch being more willing to risk economic disaster than the other, is unacceptable in a mature democracy. It requires leadership, however, to reject such an irresponsible course.

P.S. If you disagree with this viewpoint, and some certainly will, please do not blame my Constitutional law teacher, Mark deWolfe Howe, who did his best and who, I think, is likely to have agreed with this average student.

Henry J. Stern writes as StarQuest. Direct mailto:StarQuest@NYCivic.org. Peruse Mr. Stern’s writing at New York Civic.

 

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eHeziNew York Civic: Clinton Suggested Obama Resist Threats of Default By HENRY J. STERN

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