The Fourteenth Option, Part 3

Lawrence O'Donnell and UCLA law prof. Jon Zasloff discuss what President Obama can and cannot do with the 14th amendment.

The most important thing to understand is if on Tuesday morning the Treasury does not have enough money to pay its debts, to pay its obligations and pay appropriations that Congress has already appropriate appropriated, that puts the President in a tight spot.  He can either take on more debt to pay these obligations, which has a constitutional problem, or what he can do is say if the Treasury doesn't have enough money, I'm going to pick and choose which debts, which obligations, which appropriations I'm going to pay.

The problem is the Supreme Court has already specifically held the President does not have that constitutional power.  The President cannot pick and choose, so the idea that somehow the President doesn't have the authority to raise the debt ceiling by himself and so what he has to do is pick and choose which debts, obligations, and appropriations to spend creates as many constitutional problems as it solves.

The question now is we have a situation where you have a Congress that has put the President in a situation where damned if you do, damned if you don't.  Nevertheless, pretty much every Constitutional scholar has recognized, there's some reserve power the president has in an absolute emergency to avoid catastrophes like a default on the debt, a default on obligations, default on appropriations, appropriations which, by the way, Congress has told him he must spend, and it's that reserve power in an emergency in a very limited circumstance that the advocates of the 14th amendment are saying that that is why the President can lift the debt ceiling by himself.

More importantly, Zasloff argues that since that authority covers preserving the full faith and credit of previous Congresses in meeting their obligations, that in this case President Obama can use that power to say that the 112th Congress must meet the obligations of previous ones.

It's important to note that the way things are looking right now, the President may very well have to do this Monday night if as I expect there's enough Tea Party opposition to getting the Reid bill through the House...that is if it even survives a Senate GOP filibuster early tomorrow morning.  No guarantee on that for sure.