For a group of people who claim to like the Constitution, why do they want to violate it?
"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." —Amendment XIV, Section 4.
By the time that long-obscure, lately apposite sentence became part of the Constitution, on July 9, 1868, the insurrection that occasioned it had been thoroughly, and bloodily, suppressed. Throughout the Civil War and afterward, Republicans in Congress had enacted some of the most forward-looking legislation in American history: a national currency, the Homestead Act, a transcontinental railroad, support for higher education, the definitive abolition of slavery—all thanks to the extended absence of delegations from the self-styled Confederate states. Now that era was about to end.
The party of Lincoln, grand but not yet old, feared the mischief that Southern senators and representatives might get up to when their states were readmitted to the Union. The Republicans’ foremost worry was that Congress might somehow be induced to cut funds for Union pensioners or pay off lenders who had gambled on a Confederate victory. But the language of the Fourteenth Amendment’s framers went further. Benjamin Wade, the president pro tem of the Senate, explained that the national debt would be safer once it was “withdrawn from the power of Congress to repudiate it.” He and his colleagues didn’t say just that the debt could not be put off, or left unpaid. They said that it couldn’t even bequestioned.
The new insurrection is different from the old one, and not only because this time it’s the Republicans who are the insurrectionaries. The old insurrectionaries wanted to destroy the government; the new ones wish merely to decimate it. The old ones’ weapons of choice were muskets and bayonets; the new ones confine themselves to mendacity, demagoguery, and obstructionism. The old ones were exclusively white and Southern; the new ones, while overwhelmingly white, are more widely distributed. The old ones no longer wished to be citizens of the United States; the new ones, some of them, profess to wonder if the President is a citizen at all.
Still, there are similarities. Prominent among them is a belief that a federal law need not be repealed in order to be nullified. Equally noteworthy is an apparent inability to be reconciled to the results of an election. Last November, after a campaign that turned largely on the issue of health care, Barack Obama was reëlected with a popular majority of five million. In Senate races, Democrats drew ten million more votes than Republicans. In the House of Representatives, Republicans, whom Democrats outpolled by a million and a half, retained their legislative majority only by dint of the vagaries of districting and redistricting. The Confederates had a better case: in 1860, Abraham Lincoln got barely thirty-nine per cent of the vote, a smaller share than any Presidential winner since.
In the current imbroglio, Republicans threatened that, unless their demands were met, they would (a) shut down most of the government and, more alarmingly, (b) deny the Treasury the ability to borrow the money it needs to pay expenses that Congress has already authorized. The first threat was carried out on October 1st. As for the second, John Boehner, the Speaker of the House, suddenly offered last Thursday to postpone the deadline for carrying it out—but with conditions, and for a mere five weeks. The new proposed deadline is November 22nd, the fiftieth anniversary of the assassination of John F. Kennedy.
The ransom demands kept changing. At first, it was the Affordable Care Act: in exchange for a few weeks of fiscal peace, repeal it; defund it; delay it; dismember it. Then the price ballooned, with some two dozen additional conservative fever dreams: plutocrat-friendly tax cuts, Medicare means-testing, a green light for environmental depredations, financial regulatory rollback, even the end of Internet neutrality. Then it was immediate “entitlement reform” (meaning cuts in social insurance) and “tax reform” (meaning lower rates for corporations and the rich). “We have to get something out of this,” one bewildered backbencher finally bleated, “and I don’t know what that even is.”
When Lincoln faced secession if he continued to resist slavery’s expansion, he remarked, “A highwayman holds a pistol to my ear and mutters through his teeth, ‘Stand and deliver, or I shall kill you—and then you will be a murderer!’ ” Obama updated Lincoln, minus the lethal imagery: “If you’re in negotiations around buying somebody’s house, you don’t get to say, ‘Well, let’s talk about the price I’m going to pay, and if you don’t give the price then I’m going to burn down your house.’ ” Neither quip quite captures the perversity of the extortionists. They propose to shoot themselves as well as their hostage, and the house they would burn down is their house, too.
At the weekend, as public esteem for the Republican Party plunged to record lows, the elephants stampeded for the exits, raising clouds of dust. At this rate, the government shutdown may itself have been shut down by the time these words are read, with or without a fig leaf to cover the pachyderms’ privates. But the fanatical denialism of a large faction of the Republican Party is such that a default or the serious possibility of one may still be in the not too distant future. What then?
The President is constitutionally sworn to “take Care that the Laws be faithfully executed,” but if he enforces the debt ceiling, established by one law, he cannot meet obligations that other laws command him to fulfill. Nor can he submit to blackmail, lest the Constitution be informally amended to provide that any law, duly passed by the House and the Senate and signed by the President (and, if challenged, upheld by the Supreme Court), may be effectively voided by the action of one faction of one party in one half of the national legislature. And he absolutely cannot permit default, the consequences of which would be global and catastrophic.
It is widely said that the Obama Administration has “ruled out” recourse to the fourth section of the Fourteenth Amendment. Not so. In 2011, when the Republicans test-drove their debt-ceiling gambit, Timothy Geithner, then the Secretary of the Treasury, read the section to a breakfast gathering of reporters. A squall ensued; the President calmed it, saying that “lawyers” had advised him that the Fourteenth was not a “winning argument.” Similarly cagey equivocations have been forthcoming this time around. Obama has been careful to keep the option on life support. At his news conference last Tuesday, he noted that there had been some discussion about his powers, under the amendment, to “go ahead and ignore the debt-ceiling law.” He continued:
Setting aside the legal analysis, what matters is that if you start having a situation in which there’s legal controversy about the U.S. Treasury’s authority to issue debt, the damage will have been done even if that were constitutional, because people wouldn’t be sure. . . . What matters is: what do the people who are buying Treasury bills think?
What also matters, of course, is: compared with what? In the end, Obama could have no honorable choice but to invoke the Fourteenth. There is little doubt that he would prevail. The Supreme Court would be unlikely even to consider the matter, since no one would have standing to bring a successful suit: when the government pays its bills, who is damaged? The House Republicans might draw up articles of impeachment, adopt them, and send them to the Senate, where the probability of a conviction would be zero. This would not be a replay of Bill Clinton and the intern. President Clinton was not remotely guilty of high crimes and misdemeanors, but he was guilty of something, and that something was sordid. Yet impeachment was what put Clinton on a glide path to his present pinnacle as a wildly popular statesman. President Obama would be guilty only of saving the nation’s economy, and the world’s. It would be all he could do to head off a post-Bloombergian boomlet to somehow get around another amendment, the Twenty-second, and usher him to a third term.
