The Debt Ceiling Escape Hatch

John Boehner

Nancy Pelosi during her weekly news conference June 21, 2012 on Capitol Hill in Washington, DC.Alex Wong/Getty ImagesNancy Pelosi during her weekly news conference June 21, 2012 on Capitol Hill in Washington, DC.

Last year, when House Republicans pushed the government to the point of default by threatening not to raise the debt limit, there was a lot of frantic talk about using the Constitution as an escape hatch. Because the 14th Amendment prohibits any action that raises doubt about the public debt, the theory went, President Obama could declare the ceiling unconstitutional and simply ignore the House’s threat.

The idea was endorsed by Bill Clinton and several economic scholars, but it never really caught on among elected Democrats. Mr. Obama expressed skepticism about it, and Democratic leaders – who lack the confrontational DNA of their Republican counterparts – decided not to push it.

But now that Speaker John Boehner is promising a rerun of the whole fiasco within the next year, the Constitutional option is starting to have a little more appeal. On Wednesday, in a meeting with a group of columnists, Nancy Pelosi, the House Democratic leader, urged the president to use the 14th Amendment to protect the nation’s credit from another extortion attempt.

“You cannot put the country through the uncertainty” again, she said, according to Matthew Yglesias of Slate.

Ms. Pelosi’s statement is an encouraging sign that Democrats may take a very different approach when Mr. Boehner reloads later this year or early next, whenever the current debt limit is reached. Led by Mr. Obama at his most naïve, the Democratic reaction to last year’s extortion was to negotiate, to seek a grand bargain that inevitably disintegrated when Republicans refused to raise taxes on the rich.

What they got instead was a brutal sequester of military and domestic spending—

parts of which are loathed by virtually everyone in Washington—that threatens to derail the economy when it begins next January. The crisis deeply damaged the country’s financial reputation, produced a downgrade in its credit rating, and led to single-digit approval ratings of Congress.

Ms. Pelosi obviously doesn’t want to go through that again, and it’s hard to imagine why Mr. Obama would, assuming he is re-elected. If other Democrats begin pushing the idea that the debt limit is unconstitutional, it might stiffen the president’s spine to use the option, particularly now that Republicans have stated they will never again raise the limit without getting huge spending cuts in return.

It’s not as if he’d be ending a hallowed American tradition. The debt limit was always a fraud on the public, providing the illusion of a firm outside boundary to government borrowing when none was ever needed. Congress controls spending and taxes, and can raise or lower the debt as easily as it regularly used to increase the debt limit. A terrific 1961 editorial in the Times chided President Kennedy for not trying to repeal this “meaningless” statute.

Using the 14th Amendment option would lead to a messy fight, and the legal outcome is far from clear. But it’s a fight worth having, because the alternative, as the country has seen, will be far worse.

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