Some see way out of debt impasse in provision of 14th Amendment

New York Times / July 25, 2011

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WASHINGTON - A few days ago, President Clinton identified a constitutional escape hatch should President Obama and Congress fail to come to terms on a deficit reduction plan before the government hits its borrowing ceiling. He pointed to an obscure provision in the 14th Amendment, saying he would invoke it “without hesitation’’ to raise the debt ceiling “and force the courts to stop me.’’

On Friday, Obama rejected the idea, though not in categorical terms. “I have talked to my lawyers,’’ Obama said. “They are not persuaded that that is a winning argument.’’

The prospect of more uncertainty and possible court battles do not seem to appeal to the White House, and it is, in any event, not clear that the nation’s creditors would continue to lend it money were the president to take unilateral action.

The provision in question, Section 4 of the amendment, was meant to ensure payment of Union debts after the Civil War and to disavow Confederate ones. But it was written in broader terms.

“The validity of the public debt of the United States, authorized by law, including debts incurred for payments of pensions and bounties for services in suppressing insurrection or rebellion,’’ the critical sentence says, “shall not be questioned.’’

In recent weeks, law professors have been trying to puzzle out the meaning and relevance of the provision. Some have joined Clinton in saying that it allows Obama to ignore the debt ceiling. Others say it applies only to Congress and only to outright default on existing debts.