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Is the 14th Amendment even a legal option?

August 1, 2011 by  

Is the 14th Amendment even a legal option?

For the record, the White House’s official position is that President Barack Obama has no intention of invoking the 14th Amendment to the United States Constitution in order to raise the debt ceiling.

“Our position hasn’t changed. There are no off-ramps. There’s no way around this. There’s no escape. And having an esoteric constitutional argument won’t resolve the fact that our borrowing authority is due to expire on August 2nd,” White House Press Secretary Jay Carney said in a press briefing on Wednesday, which is the most recent time the Administration has commented on this subject as of this writing.

“And Congress has the legal authority — and only Congress has the legal authority to extend that borrowing authority. That’s our position. The President stood here and told you. We consulted to see what this was about, but it is not an option,” Carney said.

But what if Obama did invoke the 14th Amendment? After all, many Democrats are clamoring for him to bring an end to the debt ceiling debate on his own, through an executive order.

“He could do that [an executive order] with a stroke of a pen. We have seen many big things done in history that way,” Representative Jim Clyburn (D-S.C.) said on MSNBC’s Jansing & Co., according to POLITICO. “I was joking to my staff the other day: ‘Tell me the bill number for the Emancipation Proclamation.’ It was an executive order. We integrated the armed services by executive order. We integrated the public schools by executive order. Sometimes executives must order that things get done.”

Clyburn isn’t alone. Senator Tom Harkin (D-Iowa), House Minority Whip Steny Hoyer (D-Md.), former President Bill Clinton and other Democrats have weighed in, urging the President to exercise an authority that Obama claims not to have.

According to a column for The New Republic, in all likelihood the Supreme Court would not even hear the case if Obama did invoke the 14th Amendment, and someone challenged it. The problem in cases like this often amounts to a lack of legal “standing.”

“The conservative justices have long required clear evidence of legal ‘standing’ before opening the courthouse door — something they showed in their recent 5-4 decision rejecting a taxpayer’s challenge to an Arizona school vouchers program — and it’s hard to imagine who could establish enough of a legal injury to establish standing in this case,” the article read.

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