Law is murky on whether Obama can act on his own

July 31, 2011|By Michael Levenson, Globe Staff

President Obama has shown little enthusiasm for invoking Section 4 of the… (Carolyn Kaster/Associated…)

With just days until the nation hits its debt limit, rattling the American economy, President Obama is under mounting pressure from some members of his own party to invoke an obscure Civil War-era constitutional provision that they say would allow him to unilaterally raise the debt limit.

The notion that the president could cite Section 4 of the 14th Amendment to raise the debt ceiling without congressional approval seemed, just days ago, to be an academic debate, mostly among legal scholars. But now, with Congress deeply divided over a resolution, and the deadline alarmingly near, the idea has taken on a new life in the halls of the Capitol.

Steny H. Hoyer and James E. Clyburn, the second- and third-ranking Democrats in the House, and John Larson and Xavier Becerra, the chairman and cochairman of the House Democratic Caucus, have said they would back Obama if he uses the amendment to avoid a default.

Senator John F. Kerry and Bill Clinton, the former president, have also supported the idea, with Clinton saying he would invoke the amendment “without hesitation and force the courts to stop me.’’

Others in the party, however, say the move would be politically and legally disastrous, because it could spark divisive court battles and even impeachment proceedings in the GOP-controlled House. Some legal scholars warn that it would be an abuse of power for the president to wield the provision as a means of raising the debt limit.

Ratified during Reconstruction to ensure that the North could overcome potential Southern opposition to paying down Union war debts, it has never been invoked by a president and has rarely been tested in court.

“We shouldn’t fool ourselves into thinking the 14th Amendment gives him this authority,’’ said Laurence H. Tribe, a Harvard Law School professor and Obama mentor who was until last year a White House adviser. Nothing in the amendment gives the president the power to trample Congress, which has the sole authority to borrow money, he said. “It’s just a fantasy.’’

On the other end of the ideological spectrum, John C. Yoo, a former legal adviser to President George W. Bush, agreed that Obama would be on shaky constitutional ground.

“The president doesn’t have the constitutional authority to unilaterally raise the debt limit, and I’m not a shrinking violet on executive power,’’ said Yoo, whose expansive views of presidential power informed controversial memorandums he wrote authorizing the harsh treatment of terrorism suspects.

“The Framers wanted the president to exercise emergency power in response to national security threats, not over domestic affairs where Congress and the president have had plenty of time to deliberate and figure out a solution,’’ he wrote in an e-mail.