07/25/2013 03:29 pm ET Updated Sep 24, 2013

How the 'Filibuster Fight' Should Guide the President in Handling the Debt Ceiling Hostage Crisis

In the end Republicans folded in the filibuster debate because they preferred preserving the filibuster for another day than permanently losing an obstructionist tool they could continue to abuse.

The same strategy will work for the debt-ceiling. Congress's authority to set the debt ceiling appears nowhere in the Constitution. It is inferred from the first two enumerated powers in Article I §8:

The Congress shall have Power To:
lay and collect Taxes.... pay the Debts....
borrow money on the credit of the United States.

One could argue that Congress's power to pay the debts and borrow money means that Congress also has the power not to pay the debts and not to borrow money and thus one might infer that Congress could set a ceiling on debt regardless of what Congress had authorized. That is, the United States could, if it wished, be a scofflaw.

That argument may, or may not, have been valid, but it was amended (changed) in 1868 by the ratification of the 14th Amendment, §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

Yale Law Professor Jack Balkin has examined the history of this provision of the 14th amendment and concluded:

The threat of defaulting on government obligations is a powerful weapon, especially in a complex, interconnected world economy. Devoted partisans can use it to disrupt government, to roil ordinary politics, to undermine policies they do not like, even to seek political revenge. Section Four was placed in the Constitution to remove this weapon from ordinary politics. [emphasis added].

It is difficult to know how to read the language of Section 4 of the 14th Amendment without concluding that whatever debt has been authorized by law cannot be questioned, cannot be considered invalid, cannot be greater than some separately determined ceiling. At the risk of beating a dead horse here, if the public debt authorized by law exceeded some separately determined ceiling, then that part that exceeded the ceiling would be "questioned" for its validity, and thus in violation of the 14th Amendment.

Now, it is certainly true that Congress retained all the power after the amendment to do the following:

1. Repeal some, or part, of what had been authorized;
2. Pay down, or pay off, the debt;
3. Determine not to authorize anything that will increase the debt; or
4. Pass a law specifically directing the president not to pay debts already incurred, i.e., default.

But, the 14th Amendment prevents Congress from separately setting a ceiling lower than the amount of debt that they have authorized because that would mean that that portion of the debt was invalid; absent any affirmative law that prohibits the paying of that debt, the Executive must pay the already-authorized debt.

Let us now game the consequences of the president acting unilaterally. In 2011 the president likely harbored concerns that the political turmoil might exacerbate the economic uncertainty and thus make the situation worse. Now, however, the economy is more stable for a longer time. We have all witnessed the downgrading that occurred because of our crazy political system that seemed to allow the debts of the United States to be held hostage. And, President Obama won a resounding reelection victory, added to the senate majority and took back House seats.

President Obama can safely conclude that the political turmoil is of far less importance than allowing hostage-taking to become an established tactic, and that all elements of the economy will applaud his action.

The Republicans, of course, never miss an opportunity to gin up turmoil. Without anything to offer, turmoil is their only weapon. Certainly, there would be an instant outcry and calls for impeachment based upon the president's overstepping his authority. But, this is within the president's authority and, moreover, other presidents have exceeded their authority and not been impeached (e.g., Truman's seizure of the steel mills). Such a process takes time to gear up, and the Senate would not convict him nor remove him from office anyhow. Everyone knows this, and thus this failed exercise would neuter Congress' s alleged power to determine debt ceiling forever.

Congress will certainly take the matter to court, and it would likely make its way to the Supreme Court fairly rapidly. One would suspect the lower courts to rely on the 'political question' doctrine and disclaim jurisdiction.

At that point, what options will the Supreme Court have? It can decide that the debt-ceiling is indeed constitutional, and that the president overstepped his authority. The moment they make the ruling, the U.S. is in default and the entire world economy implodes.

Or, they can decide that the president is correct, eliminating the debt-ceiling as a hostage-taking tool forever. Or, they can also invoke the 'political question' doctrine, disclaiming jurisdiction that, in effect, also eliminates Congress's power to set the debt-ceiling, but without putting SCOTUS's stamp on it. I would wager a lot of money on the latter.

Hence, going to Court provides no solution for the right-wing, and plays into the president's hands.

Of course, that does not mean Republicans will not do it. Their base will demand it. One should assume they will adopt parallel paths of impeachment and a lawsuit. While these are proceeding, the president will be the champion of fiscal sanity, of paying seniors, doctors, veterans, hospitals, teachers, police, soldiers and so forth.

Congress, seeing their debt-ceiling tool neutered, will do what they did to avoid the filibuster: raise the debt-ceiling.

But, resolving the filibuster of the president's executive department nominees required a face-saving measure for Republicans, replacing two NLRB nominees with two others. What would be the comparable face-saver be for the debt-ceiling?

There are two strategies that can be used. The first would be the language in the debt-ceiling measure: "the debt-ceiling is raised to $X, but no more than to cover the obligations authorized by Congress," with the second phrase a throwaway because we cannot spend more than authorized by Congress anyhow.

The second would be to give the president the authority to raise the debt-ceiling in tranches, provided he made certain declarations and allow Congress to override each action by a two-thirds vote in both Houses. This would appear to keep Congress in the debt-ceiling game, and place the onus for raising it on the president.

The president should let it be known that the United States does not negotiate with hostage-takers, foreign or domestic (and, he should show he means it by actually not negotiating, instructing Treasury Secretary Jack Lew and his associates to walk out of the room if the Republicans even raise the debt-ceiling as a bargaining chip).

He should further let it be known that he has the authority and obligation to prevent default, and that seniors, veterans, teachers, children, mothers and investors can rest assured that the U.S. will not even consider default.

Let them start sniping. Let them stew. The president will stand with the American people, with Main Street, Wall Street and the world economy.

Republicans will cave. And, if they do not, the debt-ceiling will never darken our doorposts again.