Udall said the Constitution compells Obama to bypass Congress on the debt ceiling. Dems to W.H.: Don't rule out 14th

The White House insists President Barack Obama can’t — and won’t — use the 14th Amendment to raise the debt ceiling.

But a growing number of his congressional allies are urging Obama not to abandon a potentially powerful weapon before negotiations even begin.


With Republicans promising another climactic fight over the $16.4 trillion debt limit in two months, House Minority Leader Nancy Pelosi said Friday that if she were president, she would invoke the Constitution to raise the ceiling on her own — with or without permission from the GOP.

“I would do it, in a second, but I’m not the president of the United States,” Pelosi said.

Like many other Democrats, Pelosi is eyeing the language in the 14th Amendment stating that the validity of U.S. public debts “shall not be questioned.” Prominent Democrats, including former President Bill Clinton, have argued that language — added in the aftermath of the Civil War — gives Obama all the authority he needs to break the ceiling.

Realistic or not, the talk underscores growing liberal concern that yet another round of brinksmanship will hobble Washington and the economy — and force Obama into a bad negotiating position — just months after Congress went over the so-called fiscal cliff and then barely averted it with a last-minute tax deal.

Whether Obama could invoke the 14th Amendment to raise the debt limit is an open legal question.

But that isn’t deterring some Democrats.

Sen. Tom Udall (D-N.M.) said on Friday the Constitution not only allows Obama to bypass Congress on the debt ceiling — it compels him to.

“I think [the Constitution] is pretty clear. He must do something about paying the bills,” Udall said. “If Congress doesn’t give him an avenue to do that, a leader needs to take a course of action if the bills aren’t being paid. That could be devastating to our economy. It could be devastating to our reputation around the world.”

The nation reached its $16.4 trillion borrowing limit on Dec. 31, and Treasury Secretary Timothy Geithner says his department is currently taking “extraordinary measures” that will only allow the nation to pay its bills for about another two months.

And after caving on tax hikes in the fiscal cliff deal, Republican leaders are promising rank-and-file conservatives that they’ll use the need for a debt ceiling increase as leverage to extract major spending cuts, a strategy they successfully employed in 2011. But a government default holds far more economic catastrophic consequences than tax hikes and spending cuts.

The president has insisted that he won’t negotiate around the ceiling, calling the threat of default an unacceptable bargaining chip in budget negotiations. The White House has not commented on other options.

But with Republicans repeatedly promising a fight, some Democrats are urging the president not to take the Constitution off the table.

“I’m one of those who thinks the president and the government has a basis for moving forward and not being held hostage by a political party — so whether it’s the 14th Amendment or other grounds, I think there are ways that the government has to move forward without being held hostage to political threats,” says House Democratic Caucus Chairman Xavier Becerra, who sits on the powerful Ways and Means Committee.

Nevertheless, the White House says the 14th Amendment is off the table, casting doubt on the legal merits of the strategy. Press secretary Jay Carney stated in December that “this administration does not believe that the 14th Amendment gives the president the power to ignore the debt ceiling — period.”

If Obama does try to lift the limit on his own, at least one Republican has threatened a constitutional counter of his own: impeachment.

“Maybe we’ll start talking about impeachment on the floor of the House here,” said Sen. Ron Johnson, a Wisconsin Republican who believes the debt ceiling is among Republicans’ few remaining fiscal constraints. “Really, President Obama should not try this.”

Obama invoking the 14th Amendment would amount to “a nuclear bomb,” said Rep. Kevin Brady, a Texas Republican and chairman of the Joint Economic Committee.

“We certainly wouldn’t let it stand,” Brady said, though he didn’t mention impeachment. “This is America’s debt. It is serious business and not something to play a legal and political game with.”

But while conservatives argue that invoking the 14th Amendment is unconstitutional, Democrats say that’s up to the Supreme Court.

Rep. Emanuel Cleaver (D-Mo.) is urging Obama to try his luck.

“If I were the president, I would say, ‘Here’s what I’m going to do. You want to sue me? Go ahead. Because I have just made a decision that I am not going to allow Social Security recipients to miss a check,’” Cleaver said Friday.

Rep. Jim McDermott (D-Wash.), who says the president should “absolutely” keep the option on the table, said only the Supreme Court needs to worry about what’s constitutional.

“Frankly, as a member of the legislative branch, our job is not to decide whether something is constitutional or not,” the Ways and Means member said. “If we said, ‘Gee, what will Alito think on this or what will John Roberts think on that?’ we would never get anywhere. … If someone disagrees with what we’re doing, they can then take it to the court for clarification.”

Of course, not all Democrats are advocating that Obama go out on this constitutional limb.

Rep. Sander Levin, the top Democrat on Ways and Means, says the president has spoken on this front — and it’s not going to happen.



“I think everybody should take him at his word that he’s not invoking the 14th Amendment, and he’s not negotiating on the debt. Take him at his word,” he said.

Rep. Chris Van Hollen, the top Democrat on the Budget Committee, says even floating the idea actually empowers the GOP. Republicans will continue to be steadfast in their demands and less likely to negotiate with Democrats if they believe the president can and will raise the ceiling on his own, he said.

That’s why the White House is trying to shut down the idea, Van Hollen speculated.

“I think the reason is they want to make it very clear — crystal clear — to the Republicans that there’s no way out of this,” he said. “That they don’t have an escape hatch with the president issuing the 14th Amendment.”

Sen. Chuck Schumer (D-N.Y.) says Obama should neither negotiate over the debt ceiling nor raise it on its own. Instead, he should demand an increase and let Republicans suffer the consequences if they refuse to comply.

“If Republicans want to let the full faith and credit go down the drain,” Schumer said, “that's on their backs."

MJ Lee contributed to this story.

This article first appeared on POLITICO Pro at 6:26 p.m. on January 4, 2013.