The Fourteenth Option

Since it became clear that the GOP will even throw away their own position from March and is now willing to let the country default on its debt and collapse the economy, a number of people in the last week have brought up Plan B: the fourteenth amendment's provision on federal debt.  Brian Beutler:

On a conference call with reporters Friday, Sen. Chuck Schumer (D-NY) acknowledged that President Obama may not need Congressional authorization to avoid a default on the national debt. But he noted, too, that the Constitutional debate on this question isn't ripe enough yet for Obama to take an end run around Congress, even if Republicans refuse to increase the national borrowing limit.

I asked Schumer, a lawyer, whether, in his view, the administration had the power to continue issuing new debt even if Congress fails to raise the debt limit. He acknowledged that the question's been discussed, but said the White House probably shouldn't go there just yet.

"It's certainly worth exploring," Schumer said. "I think it needs a little more exploration and study. It's probably not right to pursue at this point and you wouldn't want to go ahead and issue the debt and then have the courts reverse it."

What's Schumer talking about?  This:

For weeks, liberal legal academics have been arguing that the fourth section of the 14th Amendment forbids Congress from defaulting. "The validity of the public debt of the United States, authorized by law...shall not be questioned," it reads. More recently, Democratic members of Congress have been eyeing this interpretation as a sort of escape hatch: Why should we be debating raising the debt limit on the GOP's draconian terms if the Constitution says Congress can't force a default. 

 The 14th Amendment reads, in part:

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.

Some scholars believe that clause means that Congress cannot arbitrarily limit public debt.   But there's never really been a major Supreme Court ruling or even federal precedent on this, so it's a hell of a gamble, legally.

Then again, so is defaulting and putting us into a recession/depression.  I hope this card never has to be played, but then again, the Republicans aren't exactly leaving President Obama with many choices right now.