Will Obama Go Fascist on the Debt Ceiling?

by Ben Johnson, The White House Watch

Barack Obama has sometimes been fond of branding his Republican foes “hostage-takers,” but officials in his administration have found a new hostage in their negotiations over raising the debt ceiling: the U.S. Constitution. The president’s advisers and several “unbiased” media outlets are suggesting if Congress refuses to raise the debt ceiling, Barack Obama can force the nation to continue borrowing money. The Founding Fathers required all expenditures originate in the House of Representatives, but Obama officials are wrapping his actions in the 14th Amendment. For the first time in living memory, the president is threatening to commit an impeachable offense if he does not get his way.

CBS News has reported the debt ceiling impasse leaves “the option of a congressional end-run by President Obama a possibility.” Reporter Whit Johnson said, “The stalemate in Washington has some asking if President Obama could simply bypass Congress and order the Treasury to keep borrowing.” Obama or his spokesman Jay Carney has been asked twice about the possibility and, despite an incredibly misleading headline from the Associated Press, neither rejected the possibility. (Carney merely said, “I don’t think that I want to get into speculation about what might happen if something does or doesn’t happen”; Obama replied, “I don’t think we should even get to the constitutional issue.”) MSNBC’s Powerwall dared the president to carry it out, claiming it would be smart politically.

Treasury Secretary Timothy Geithner, who has never shown much regard for financial laws, claims the president has this power under the Fourteenth Amendment. The fourth clause states:

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.

Geither made his comments at a “Playbook Breakfast” hosted by the online publication Politico, which has previously urged Obama to rule by decree. In December, John F. Harris and James Hohmann wrote, “Republican gains in Congress make it essential for him to use new avenues of power.”

Geithner is not alone in his inversion of the Constitution. Economist Bruce Bartlett intoned, “Given that the Supreme Court in recent years has been unusually deferential to executive prerogatives – I feel certain President Obama would be on firm constitutional ground should he challenge the debt limit in order to prevent a debt default.” What began as too-clever-by-half musings on left-leaning websites quickly filtered into the administration’s talking points.

The White House and Congress have come to a standstill as Obama refuses to make meaningful cuts in his bloated budget. The last time this came to a head, Obama promised $38 billion in budget cuts as a precondition for raising the debt ceiling but delivered miniscule reductions, nearly all of which could be offset by Obama’s unilateral war in Libya.

The president demands GOP leaders bring “no ultimatums” to this round of negotiations; he simultaneously refuses to take tax hikes off the table. He hopes to get Republican support for raising taxes before the 2012 elections, or to blame their intransigence for cutting off Social Security checks and veterans pensions – particularly to the elderly in rural areas.

The irony is virtually insufferable as Barack Obama presents himself as the defensor fidei, selflessly protecting the Constitution from barbarian Republicans. Obama’s reincarnation as savior of the 14th Amendment comes shortly after he discovered the 10th Amendment – as the state of New York legalized homosexual “marriage.”

Such sheer audacity proved too much for left-wing hatemongers to resist. Ryan Grim of The Huffington Post went on Keith Olbermann’s Countdown program (“Now seen in fewer homes!”) to chortle at the Tea Party, “It is awfully ironic, because the Tea Party is the one [sic.] that elevated the Constitution in this last election, and that’s what the president and Democrats would be saying. They’d say, ‘Look! Here’s the very plain language. Do you agree with the plain language of the Constitution, or do you not?’ So, it would put them in a very tough situation.”

(The story continues following the video.)

There’s just one problem: their legal argument is nonsense. Temporarily refusing to raise the debt ceiling is not “questioning” our obligation to repay the national debt. Congress is simply negotiating the precise conditions under which payment will be made, which is that branch’s sole prerogative. Obama simply wants to short-circuit those negotiations, impose his will on the American people, and keep supercharging his plans for “hope and change” on the credit card of future generations.

One of the key advocates of side-stepping Congress – Garrett Epps, who teaches constitutional law at the University of Baltimore Law School[1] – has admitted, “the [Constitution’s] language could be seen as simply forbidding outright repudiation, not temporary default. Default on U.S. bonds would, in this analysis, not dispute the ‘validity’ of the debt; it would simply delay repayment.”

Nonetheless, Bartlett advises conservatives to avoid a court showdown at all costs. “Should the Court rule in his favor, the debt limit would effectively become a dead letter. Is that really the outcome Republicans want from a debt limit showdown?”

True, that is one possible outcome. However, two Obama Supreme Court appointees, Sonia Sotomayor and Elena Kagan, would have to recuse themselves from the case (although their record on judicial ethics does not guarantee they would). That leaves the court’s four conservatives to contend with only two hard-liberals (Ginsburg and Breyer) and a walking Constitutional convention (Anthony Kennedy). If a majority of those seven find Obama has usurped the functions of Congress and violated the Constitution, articles of impeachment would almost certainly follow. Is that really the outcome Obamaphiles want by advocating debt limit fascism?

Article I, Section 8 of the Constitution begins, “The Congress shall have the power…to pay the debts” and “[t]o borrow money on the credit of the United States.” The president of the United States cannot compel Congress to spend a dollar on anything – including debt service. Indeed, the nation’s courts have ruled the president cannot refuse to spend money allocated by Congress – as when Richard Nixon tried “impounding” millions of dollars spent on unconstitutional programs that aid the Left’s foot soldiers. When Nixon tried to save the American people money, journalists, academics, and effete elitists wailed about The Imperial Presidency. When Barack Obama tries to further enslave our children, they wrap it a misreading of the Constitution.

Moe Lane at Red State has noted the liberal media fall back on the argument that Obama’s actions will have to be legally vetted by the Office of Legal Counsel (OLC) in the Justice Department. Eric Holder’s Justice Department. The OLC ruled that the president can preempt Congress and take American troops to war for 60 days with UN authorization — but when the office would not sign off on continuing the war in violation of the War Powers Resolution, Obama performed an “end-run” around the OLC, too, handpicking the legal arguments of the only lawyers in his administration who agreed with him: Harold Honju Koh and Robert Bauer. This reassurance is cold comfort, indeed.

The advocates of top-down power grabs tacitly acknowledge the weakness of their case. Epps admits his argument “is pushing executive authority to the limit,” but that is “how previous presidents pushed…The government becomes paralyzed, the president seizes the power to act unilaterally.” Of course, the government is not “paralyzed” if Congress tells a free-spending president no. And what the president inevitably “seizes” is liberty.

But some Republicans may not mind the outcome. Jonathan Chait – who argued Obama’s impeachment is inevitable – notes Obama’s acting unilaterally might be John Boehner’s “best outcome.” It would allow him to go along with raising the debt ceiling (which he really wants to do) while positioning as a Tea Party hero (which he really is not).

Supporters concede such a flagrant violation of the separation of powers will have incendiary effects on the nation’s politics. Louis Michael Seidman, a Georgetown Law School professor who favors Obama’s debt fascism, states flatly, “There would be a constitutional crisis.”

The constitutional crisis is already well in bloom, from illegal wars in Libya, to race-based justice in the voting booth, to a determination to rule as a king or dictator while sidestepping the people’s branch of government. The Obama administration is arguing for the right to unilaterally declare war, grant amnesty to illegal immigrants, and impose labor laws that cannot pass Congress; now it is demanding the power for the president to single-handedly deepen public indebtedness. These are the rights of a king, not the enumerated powers of a president. It is high time the conservative movement began to acknowledge the one Constitutionally mandated remedy for such a crisis and remove this president from office.


1. Epps also worked as a journalist for The Washington Post. Somehow, he is now repeating liberal mantras. I’m sure his case is anomalous and that such political bias has had no impact on his teaching nor his journalistic objectivity.