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Visit msnbc.com for breaking news, world news, and news about the economy It’s come to this: The White House is making tentative plans for a Friday evening briefing detailing which of the government’s bills will be paid and which will not come Aug. 2 if Democrats and Republicans fail to find common ground on the debt ceiling. ABC’s Jake Tapper reports this morning that, “Officials are most concerned about paying the interest on the existing debt, since failure to do so would result in default and almost certain immediate market panic, as well as questions about how Treasury would be able to roll over a pre-existing $87 billion in debt that comes due next week. After that -- a list of priorities, not all of which that can be met. Social Security checks? Medicare? Government workers? Pentagon contractors? Troops' salaries? The FBI?” http://abcn.ws/qjKQcx Such a briefing, Tapper notes, would take place after the markets close (4 p.m.) on Friday. Meanwhile, the House of Representatives is preparing today for a vote on Speaker John Boehner’s debt-limit plan after Boehner instructed his members yesterday -- especially those freshman Tea Party holdouts -- to “get your ass in line” behind it. Last-Ditch 14th Amendment Plan Gains Momentum As Debt Clock Ticks As fears intensify that Congress will not pass a debt limit increase in time to avoid default, some Democrats are pulling out their pocket Constitutions to find a back-up plan. Assistant Minority Leader Rep. James Clyburn, R-S.C., said today that if a long-term deal is not struck by Aug. 2, President Obama should sign an executive order raising the debt ceiling without Congressional approval. He said this action would be justified because of a section in the 14th Amendment that states that “the validity of the public debt ... shall not be questioned.” "I am convinced that whatever discussions about the legality of that can continue," Clyburn said. "But I believe that something like this will bring calm to the American people, and will bring needed stability to our financial markets." The argument is that a default would put the “validity of the public debt” in jeopardy, thus violating the 14th Amendment. And since the president took a vow to “preserve, protect and defend the Constitution” it would then be his responsibility to ensure that the country does not default. But constitutional scholars are divided over whether the amendment would, in fact, justify the president to unilaterally take action on the debt ceiling. Laurence Tribe, a constitutional scholar at Harvard University and one of President Obama’s former professors, told ABC News earlier this month that the 14th Amendment must be upheld by Congress, not by the president. Read more about the 14th Amendment debate here. “It’s a tempting [argument], but I think it’s fundamentally fallacious because it assumes that the executive branch is the branch of government that has the ability to enforce the 14th Amendment. Section 5 makes clear it is Congress that has that power,” Tribe said. Obama seems to agree. At his University of Maryland town hall July 22, the president said he does not believe he could use the 14th Amendment to raise the debt ceiling, even if there is no agreement by Aug. 3. "I have talked to my lawyers," he said. "They are not persuaded that that is a winning argument." But both the president and the Treasury Department have stopped short of saying Obama will not invoke the 14th Amendment if worse comes to worst. The idea is tempting, at least, to the president. “Believe me, the idea of doing things on my own is very tempting,” Obama said Monday at the annual meeting of the National Council of La Raza. Treasury Secretary Timothy Geithner told ABC News' Christiane Amanpour on Sunday that it is “not a workable option to limit the damage to the American people that would come from Congress to avoid a default crisis." If the president does decide to use the amendment, House Democratic Caucus Chairman John Larson said today that “his caucus is prepared to stand behind him.” “We have to have a fail-safe mechanism," said Larson, D-Conn. "We believe that fail-safe mechanism is the 14th Amendment and the president of the United States." Some argue that raising the debt ceiling without congressionally-approved deficit reductions attached would not go far enough to avoid financial calamity. In his testimony before the House Financial Services Committee today, the president of the credit rating agency Standard & Poor, Deven Sharma, said, "The more important issue is the long-term growth rate of the debt.” Tribe also argued that if Obama went it alone, “It’s anybody’s guess how much confidence creditors around the world would have that those debts would be repaid.” “I think it is something that should be avoided at all costs,” Tribe said. “The idea of violating the Constitution without the guarantee that it would solve the economic crisis seems particularly unwise.” The Associated Press contributed to this report. Will U.S. Default? $4.8 Billion Investment Says Yes McCain Blasts Tea Party for 'Foolish' Demands in Debt Debate Budget Talks Collapse over Demands to Raise Taxes A Way Out for Dems on Debt Ceiling Talks Debt Ceiling: A Threat to Corporate America The Debt Ceiling Might Be Unconstitutional, But Now Is Not The Time To Find Out By Ezra Klein ({I’m certain that I don’t agree with him on hist last point, considering that gridlock is the PATH to a sustainable budget future, not an impediment to it. If there’s no solution, the deficit problem takes care of itself. So a court case that affirms the executive’s right to rack up more debt without strings attached would put the political system in a healing kind of gridlock that brings the budget into primary balance. I don’t see the problem. But stepping back even more, the issue is not really whether or not to invoke this Constitutional option; it’s whether to do it as an alternative. An alternative to what? An alternative to this:} The Huffington Post reports that some Senate Democrats are arguing that the debt ceiling is unconstitutional and can potentially just be ignored. The New Republic called a few left-leaning legal scholars and budget wonks to flesh out the idea. As a legal theory, that might well be correct, but as a practical solution to the debt-ceiling standoff, it shouldn’t be tried. If Congress blows past the debt ceiling and the Treasury Department simply continues borrowing to pay our debts, there’d be two primary obstacles to anyone trying to sue the administration: standing and the Constitution. Standing — essentially, the right to sue — is tough because of a 1998 decision in which Chief Justice William Rehnquist, writing for the majority, threw out a suit brought by a group of congressmen alleging that the line-item veto reduced their power. Rehnquist said that the policy did not harm them in a “personal and individual way,” and so they didn’t have standing to sue. There’s no obvious reason a suit over the debt limit would fare any better. Then there’s the Constitution itself. Section Four says “The validity of the public debt of the United States, authorized by law … shall not be questioned.” Bruce Bartlett argues, I think quite convincingly, that this could be read to invalidate any congressional actions — like the debt ceiling — that call the security of our debt into question. Whether the conservative Supreme Court would read it that way is, of course, a whole other question. But back the conversation up for a moment. The danger of the debt limit isn’t that America won’t eventually make good on its debts. We have more than enough money to cover our bills, and the market knows that perfectly well. It’s that the fight over paying our debt will be so brutal, so irresponsible, and so unsettling that the market will reevaluate the faith it puts in America’s political system to pay our bills, reduce our deficit and make sound economic decisions in the years to come. Put slightly differently, the danger isn’t that investors never get paid, but that the way they get paid makes them lose faith in the country’s management, which in turn forces the entire financial system to reevaluate the safety of a bedrock asset — which is essentially exactly what happened in the last financial crisis, but on a much larger scale. Layering a constitutional crisis over political gridlock may work in the sense that the Obama administration will win the court case. But it’ll fail terribly in terms of sustaining the market’s confidence in our political system. That’s a step toward total breakdown, not evidence that agreement can eventually be reached and economic renewal achieved. The debt ceiling needs to be resolved in a way that assures investors that America’s other economic problems will be resolved, too. A court case that affirms the executive’s right to rack up more debt and the political system’s inability to agree on a reasonable deficit reduction package is the precise opposite of that. You know those old Looney Tunes where the Roadrunner and Wile E. Coyote would both run across an abyss, but the Roadrunner would get to the other side, while Wile E. would look down and fall? That’s sort of where we are with the markets. Right now, they’re confident that we’ll get everything under control, even though our finances are a mess and our political system is as paralyzed and gridlocked as it’s been in modern times. They’re the Roadrunner, in other words. In that context, the debt ceiling isn’t just about paying our bills. It’s about keeping the market from looking down. WHILE ALL THIS IS TRUE "The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States...to borrow money on the credit of the United States..." Congress alone has the legal authority to extend the borrowing authority of the federal government. If the president chose to raise the debt limit on his own by use of executive order he would be guilty of exceeding the constitutional powers of the executive branch and of usurping the powers reserved to Congress. The president, moreover, can move quickly, but court cases take time. “At the point at which the economy is melting down, who cares what the Supreme Court is going to say?” Professor Balkin said. “It’s the president’s duty to save the Republic.” Another possible reaction to unilateral action from Mr. Obama is impeachment. Professor Tribe said that was “not politically a very plausible scenario.” Professor Levinson was less certain. Impeachment by the House of Representatives “seems to me quite likely.” But, he added, “it is also literally unimaginable that the Senate would convict.” A third possible response is what some law professors call “popular constitutionalism.” The meaning of the Constitution, these professors say, is in the end what the public believes it to be. The president and members of Congress may thus pay a political price for taking stands at odds with what the public understands to be their constitutional obligations. No, this is Section Four of the Fourteenth Amendment, which says that "[t]he validity of the public debt of the United States, authorized by law . . .shall not be questioned." It goes without saying that provoking a constitutional crisis over the debt limit is a bad idea, but a debt crisis would be worse. At a minimum, the Fourteenth Amendment greatly strengthens the president’s hand in getting the debt limit increased in a timely matter. He should not be afraid to use it. As for the consequences, But as a matter of common sense, a delay in raising the debt limit may have malign results even if the United States does not technically default on bond-interest payments. READ David Kennedy's Freedom from Fear: The American People in Depression and War, 1929-1945, and you will not sleep well. The current year seems uncomfortably like 1931, when some brave forecasters still nourished hope that recovery was underway. Shocks to confidence in the nation and the world kept coming, however, until by early 1933 severe recession had become unparalleled catastrophe. Since 2008, we've heard several times that recovery has begun; but events around the world--European debt crises, Middle East revolutions, the earthquake, tsunami and meltdown in Japan, and now political infighting in Washington--keep intervening to strangle it. So it seems like a bad time for Congressional Republicans to point a gun at the national credit rating and scream, "One step and I'll shoot!" If the debt limit increase is snarled, confidence in our bonds may crater even if Treasury is able to find a temporary way to maintain the interest payments. If the world no longer feels solid about U.S. debt, the consequences could be as bad as 1932-33. That's where the good old text of the Constitution comes in--the actual text, not the mythical snippets that many Americans misremember from eighth-grade civics, and not the truncated redaction that too many lawyers, alas, learn in their first-year Con Law class. Section Four of the Fourteenth Amendment states, at its outset, that "[t]he 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." This section was inserted into the Amendment because of a very real concern that Southern political leaders, and their Northern allies, would gain the upper hand in Congress in the 1866 or 1868 elections and vote to repudiate the national debt. The Lincoln administration had borrowed freely to finance the war machine. As Reconstruction dawned, white Southerners complained bitterly that they would now be taxed to repay the funds that had been borrowed to defeat their cause. "What, ruin us, and then make us help pay the cost of our own whipping?" one asked a Northern journalist in 1865. "I reckon not." Southerners were used to having their way in Congress--they had dominated the institution from 1787 until secession in 1861--and many believed that when their representatives arrived in House and Senate, they would be able to tear up the nation's IOUs. Section Four was the response; its language is extraordinary. First, it does not simply say that the national debt must be paid; it says that its "validity ... shall not be questioned." Only one other section of the Constitution--the Thirteenth Amendment's proclamation that "[n]either slavery nor involuntary servitude ... shall exist within the United States, or any place subject to their jurisdiction"--is as unqualified and sweeping. Second, it suggests a broad definition of the national debt: "...including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion." From this language, it's not hard to argue that the Constitution places both payments on the debt and payments owed to groups like Social Security recipients--pensioners, that is--above the vagaries of Congressional politics. These debts have to be paid, the argument would be, in full, on time, without question. If Congress won't pay them, then the executive must. On the other hand, the language could be seen as simply forbidding outright repudiation, not temporary default. Default on U.S. bonds would, in this analysis, not dispute the "validity" of the debt; it would simply delay repayment. But remember the strict language. Suppose you lend $10,000 to your cousin. When the debt comes due, he says, "Listen, I'm good for the money, but I'm a little short right now. Trust me, I will get it to you sooner or later." That's not repudiation. But on the other hand, you might think the validity was now at least being "questioned." For the Obama administration to adopt the broad reading of Section Four would be bold (and I hasten to say I don't expect them to do it); but it would hardly be unusual in the recent discourse of presidential power--especially the Republican party's theory of the presidency. The Speech Obama Could Give: 'The Constitution Forbids Default' Imagining a presidential address confronting Republicans who want to risk the nation's credit for political reasons My fellow Americans, I am speaking to you tonight to let you know the steps I have taken to ensure that America lives up to its obligations during the current political crisis. As you know, the continuing recession and the pressures of running two wars have made it necessary for the government to borrow money on the world market in order to meet our commitments at home and abroad, see to it that our armed forces receive their pay and equipment, and fulfill our obligations to the retired, the unemployed, and those in need of medical care. Unfortunately, Congress has not passed an increase in the statutory debt limit as the deadline approaches. Members of the House majority have informed me that they will not agree to an increase in the debt limit without imposing restrictions on the government budget that will threaten our nation's recovery, imperil the national defense, and cause widespread suffering. I have offered to negotiate in good faith, as I did during the budget crisis, but they have shown no interest in real negotiations. As of midnight tonight, the government's statutory borrowing authority will be exhausted. If no measures are taken, the government must either default on its bonded indebtedness or on its obligations to seniors on Social Security, to unemployed workers dependent on federal insurance payments, and to American service personnel serving in areas of armed conflict. That is what the Framers intended: to set the debt obligations of our country beyond the reach of Congressional meddling. For this reason, I have ordered that Secretary of the Treasury Timothy Geithner immediately begin issuing binding debt instruments on the world market sufficient to cover all the current obligations of the United States government, even in default of Congressional action to meet those obligations. I take this action to fulfill the oath I took as president of the United States. The Constitution explicitly requires me, under my duty to "take care that the laws be faithfully executed," to meet and pay all debts of the United States. This requirement is absolute. It is contained in Section Four of the Fourteenth Amendment, which directs, in no uncertain terms, that "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." This provision makes clear that both the monies our nation owes to bondholders, and the sums promised in legislation to those receiving pensions set by law from the federal government, must be paid regardless of the political whims of the current congressional majority. All obligations that the nation has undertaken by drawing on its credit must at all times be rendered current. As a former professor of constitutional law, I want to explain to you the origin of Section Four. After the Civil War, political leaders in the defeated South announced their intention of resuming their seats in Congress and of using their power--augmented by increased Congressional representation for the freed slaves--to compel the federal government either to pay off all debts of the Confederacy or to default on the national debt which had been borrowed to finance the Union war effort. They also intended to present to the nation a huge bill for what they claimed was the value of the slaves that had been freed by the Emancipation Proclamation and the Thirteenth Amendment. For this reason, the Framers of the Fourteenth Amendment wrote into our fundamental law an absolute prohibition against defaulting on the national debt. Its language establishes a complete firewall against the misuse of governmental power by one political faction to get its way by wrecking the public credit. Only one other provision of the Constitution--the Thirteenth Amendment's categorical prohibition on slavery--is as rigid as the language of Section Four. That language is not binding only on Congress, but on all parts of the government, including the executive branch. For nearly a century and a half, the absolute language of the Fourteenth Amendment was not even questioned. I regret to say, however, that today our nation faces exactly the threat Section Four was designed to guard against. A vocal and determined political minority--what our great Founder James Madison would have called a "faction"--is determined to use its dominance in one House of Congress as a weapon to circumvent the democratic process. It wants to find a back-door way to undo programs and policies that have been democratically enacted over a 75-year period. It wants to impose a narrow vision of government and America that has been rejected by our people repeatedly over the same period. This determined minority is now prepared to defy the Constitution to get its way. Some of its voices have begun to say that national default would be welcome, even if it wrecks our international credit and leads the U.S. to default not only on its bonded obligations but on the debts due to its armed forces in the field--debts that are even more sacred than "pensions and bounties for services" already performed by veterans in previous wars. Indeed, I am convinced that the only reason why the framers of Section Four did not explicitly include "payments to military personnel in the field during congressionally authorized military action" is that it was literally unthinkable even to the most hardened partisans among them that any faction within the United States Congress would countenance cutting off payments to those who carry our flag in foreign nations under hostile fire. Some may ask why I do not simply use my executive authority to juggle accounts and cook the federal books in order to pay the most pressing obligations while I implore this determined minority to honor their oaths to uphold the Constitution. I do not have the luxury of partial or halfhearted compliance with the absolute command of our nation's fundamental law. Section Four does not say that the national debt "shall be paid sooner or later," or "shall be stretched out as long as possible," or "shall be paid in some areas but not in others." It also does not say "shall not be questioned unless Congress really wants to." As long as I remain president, the national debt of the United States shall not be questioned. It says it "shall not be questioned." The national debt must be paid in full, on time, regardless of any political division within our Congress. That is what the Framers intended: to set the debt obligations of our country beyond the reach of Congressional meddling. Those obligations will not be questioned as long as I am president of the United States. This action requires me to authorize borrowing that is not in conformity with the debt-limit statute. But no congressional statute can command or permit our government to violate the Constitution. I find the debt limit, to the extent that it could be construed to require national default on any obligation of our nation, to be in the words of the great chief justice John Marshall, repugnant to the Constitution and thus void. I regret that the intransigence of a small minority of members of Congress have forced our nation into this situation. I know that some of these same political leaders will now charge me with violating the Constitution -- the same Constitution that they apparently have no desire either to read or to follow. If they truly believe this to be true, I challenge them to bring Articles of Impeachment against me. The charge should be that I did what was necessary to support our troops in the field, to bolster our public credit, and to prevent destitution and despair among American families. I welcome that debate. But as long as I remain president, the national debt of the United States shall not be questioned. That is my pledge to you, to the world, and to the memory of the brave men and women who gave the last full measure of devotion to rescue the United States from forces who long ago sought its destruction. Good night. And God bless America.

Visit msnbc.com for breaking news, world news, and news about the economy It’s come to this: The White House is making tentative plans for a Friday evening briefing detailing which of the government’s bills will be paid and which will not come Aug. 2 if Democrats and Republicans fail to find common ground on the debt ceiling. ABC’s Jake Tapper reports this morning that, “Officials are most concerned about paying the interest on the existing debt, since failure to do so would result in default and almost certain immediate market panic, as well as questions about how Treasury would be able to roll over a pre-existing $87 billion in debt that comes due next week. After that -- a list of priorities, not all of which that can be met. Social Security checks? Medicare? Government workers? Pentagon contractors? Troops' salaries? The FBI?” http://abcn.ws/qjKQcx Such a briefing, Tapper notes, would take place after the markets close (4 p.m.) on Friday. Meanwhile, the House of Representatives is preparing today for a vote on Speaker John Boehner’s debt-limit plan after Boehner instructed his members yesterday -- especially those freshman Tea Party holdouts -- to “get your ass in line” behind it. Last-Ditch 14th Amendment Plan Gains Momentum As Debt Clock Ticks As fears intensify that Congress will not pass a debt limit increase in time to avoid default, some Democrats are pulling out their pocket Constitutions to find a back-up plan. Assistant Minority Leader Rep. James Clyburn, R-S.C., said today that if a long-term deal is not struck by Aug. 2, President Obama should sign an executive order raising the debt ceiling without Congressional approval. He said this action would be justified because of a section in the 14th Amendment that states that “the validity of the public debt ... shall not be questioned.” "I am convinced that whatever discussions about the legality of that can continue," Clyburn said. "But I believe that something like this will bring calm to the American people, and will bring needed stability to our financial markets." The argument is that a default would put the “validity of the public debt” in jeopardy, thus violating the 14th Amendment. And since the president took a vow to “preserve, protect and defend the Constitution” it would then be his responsibility to ensure that the country does not default. But constitutional scholars are divided over whether the amendment would, in fact, justify the president to unilaterally take action on the debt ceiling. Laurence Tribe, a constitutional scholar at Harvard University and one of President Obama’s former professors, told ABC News earlier this month that the 14th Amendment must be upheld by Congress, not by the president. Read more about the 14th Amendment debate here. “It’s a tempting [argument], but I think it’s fundamentally fallacious because it assumes that the executive branch is the branch of government that has the ability to enforce the 14th Amendment. Section 5 makes clear it is Congress that has that power,” Tribe said. Obama seems to agree. At his University of Maryland town hall July 22, the president said he does not believe he could use the 14th Amendment to raise the debt ceiling, even if there is no agreement by Aug. 3. "I have talked to my lawyers," he said. "They are not persuaded that that is a winning argument." But both the president and the Treasury Department have stopped short of saying Obama will not invoke the 14th Amendment if worse comes to worst. The idea is tempting, at least, to the president. “Believe me, the idea of doing things on my own is very tempting,” Obama said Monday at the annual meeting of the National Council of La Raza. Treasury Secretary Timothy Geithner told ABC News' Christiane Amanpour on Sunday that it is “not a workable option to limit the damage to the American people that would come from Congress to avoid a default crisis." If the president does decide to use the amendment, House Democratic Caucus Chairman John Larson said today that “his caucus is prepared to stand behind him.” “We have to have a fail-safe mechanism," said Larson, D-Conn. "We believe that fail-safe mechanism is the 14th Amendment and the president of the United States." Some argue that raising the debt ceiling without congressionally-approved deficit reductions attached would not go far enough to avoid financial calamity. In his testimony before the House Financial Services Committee today, the president of the credit rating agency Standard & Poor, Deven Sharma, said, "The more important issue is the long-term growth rate of the debt.” Tribe also argued that if Obama went it alone, “It’s anybody’s guess how much confidence creditors around the world would have that those debts would be repaid.” “I think it is something that should be avoided at all costs,” Tribe said. “The idea of violating the Constitution without the guarantee that it would solve the economic crisis seems particularly unwise.” The Associated Press contributed to this report. Will U.S. Default? $4.8 Billion Investment Says Yes McCain Blasts Tea Party for 'Foolish' Demands in Debt Debate Budget Talks Collapse over Demands to Raise Taxes A Way Out for Dems on Debt Ceiling Talks Debt Ceiling: A Threat to Corporate America The Debt Ceiling Might Be Unconstitutional, But Now Is Not The Time To Find Out By Ezra Klein ({I’m certain that I don’t agree with him on hist last point, considering that gridlock is the PATH to a sustainable budget future, not an impediment to it. If there’s no solution, the deficit problem takes care of itself. So a court case that affirms the executive’s right to rack up more debt without strings attached would put the political system in a healing kind of gridlock that brings the budget into primary balance. I don’t see the problem. But stepping back even more, the issue is not really whether or not to invoke this Constitutional option; it’s whether to do it as an alternative. An alternative to what? An alternative to this:} The Huffington Post reports that some Senate Democrats are arguing that the debt ceiling is unconstitutional and can potentially just be ignored. The New Republic called a few left-leaning legal scholars and budget wonks to flesh out the idea. As a legal theory, that might well be correct, but as a practical solution to the debt-ceiling standoff, it shouldn’t be tried. If Congress blows past the debt ceiling and the Treasury Department simply continues borrowing to pay our debts, there’d be two primary obstacles to anyone trying to sue the administration: standing and the Constitution. Standing — essentially, the right to sue — is tough because of a 1998 decision in which Chief Justice William Rehnquist, writing for the majority, threw out a suit brought by a group of congressmen alleging that the line-item veto reduced their power. Rehnquist said that the policy did not harm them in a “personal and individual way,” and so they didn’t have standing to sue. There’s no obvious reason a suit over the debt limit would fare any better. Then there’s the Constitution itself. Section Four says “The validity of the public debt of the United States, authorized by law … shall not be questioned.” Bruce Bartlett argues, I think quite convincingly, that this could be read to invalidate any congressional actions — like the debt ceiling — that call the security of our debt into question. Whether the conservative Supreme Court would read it that way is, of course, a whole other question. But back the conversation up for a moment. The danger of the debt limit isn’t that America won’t eventually make good on its debts. We have more than enough money to cover our bills, and the market knows that perfectly well. It’s that the fight over paying our debt will be so brutal, so irresponsible, and so unsettling that the market will reevaluate the faith it puts in America’s political system to pay our bills, reduce our deficit and make sound economic decisions in the years to come. Put slightly differently, the danger isn’t that investors never get paid, but that the way they get paid makes them lose faith in the country’s management, which in turn forces the entire financial system to reevaluate the safety of a bedrock asset — which is essentially exactly what happened in the last financial crisis, but on a much larger scale. Layering a constitutional crisis over political gridlock may work in the sense that the Obama administration will win the court case. But it’ll fail terribly in terms of sustaining the market’s confidence in our political system. That’s a step toward total breakdown, not evidence that agreement can eventually be reached and economic renewal achieved. The debt ceiling needs to be resolved in a way that assures investors that America’s other economic problems will be resolved, too. A court case that affirms the executive’s right to rack up more debt and the political system’s inability to agree on a reasonable deficit reduction package is the precise opposite of that. You know those old Looney Tunes where the Roadrunner and Wile E. Coyote would both run across an abyss, but the Roadrunner would get to the other side, while Wile E. would look down and fall? That’s sort of where we are with the markets. Right now, they’re confident that we’ll get everything under control, even though our finances are a mess and our political system is as paralyzed and gridlocked as it’s been in modern times. They’re the Roadrunner, in other words. In that context, the debt ceiling isn’t just about paying our bills. It’s about keeping the market from looking down. WHILE ALL THIS IS TRUE "The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States...to borrow money on the credit of the United States..." Congress alone has the legal authority to extend the borrowing authority of the federal government. If the president chose to raise the debt limit on his own by use of executive order he would be guilty of exceeding the constitutional powers of the executive branch and of usurping the powers reserved to Congress. The president, moreover, can move quickly, but court cases take time. “At the point at which the economy is melting down, who cares what the Supreme Court is going to say?” Professor Balkin said. “It’s the president’s duty to save the Republic.” Another possible reaction to unilateral action from Mr. Obama is impeachment. Professor Tribe said that was “not politically a very plausible scenario.” Professor Levinson was less certain. Impeachment by the House of Representatives “seems to me quite likely.” But, he added, “it is also literally unimaginable that the Senate would convict.” A third possible response is what some law professors call “popular constitutionalism.” The meaning of the Constitution, these professors say, is in the end what the public believes it to be. The president and members of Congress may thus pay a political price for taking stands at odds with what the public understands to be their constitutional obligations. No, this is Section Four of the Fourteenth Amendment, which says that "[t]he validity of the public debt of the United States, authorized by law . . .shall not be questioned." It goes without saying that provoking a constitutional crisis over the debt limit is a bad idea, but a debt crisis would be worse. At a minimum, the Fourteenth Amendment greatly strengthens the president’s hand in getting the debt limit increased in a timely matter. He should not be afraid to use it. As for the consequences, But as a matter of common sense, a delay in raising the debt limit may have malign results even if the United States does not technically default on bond-interest payments. READ David Kennedy's Freedom from Fear: The American People in Depression and War, 1929-1945, and you will not sleep well. The current year seems uncomfortably like 1931, when some brave forecasters still nourished hope that recovery was underway. Shocks to confidence in the nation and the world kept coming, however, until by early 1933 severe recession had become unparalleled catastrophe. Since 2008, we've heard several times that recovery has begun; but events around the world--European debt crises, Middle East revolutions, the earthquake, tsunami and meltdown in Japan, and now political infighting in Washington--keep intervening to strangle it. So it seems like a bad time for Congressional Republicans to point a gun at the national credit rating and scream, "One step and I'll shoot!" If the debt limit increase is snarled, confidence in our bonds may crater even if Treasury is able to find a temporary way to maintain the interest payments. If the world no longer feels solid about U.S. debt, the consequences could be as bad as 1932-33. That's where the good old text of the Constitution comes in--the actual text, not the mythical snippets that many Americans misremember from eighth-grade civics, and not the truncated redaction that too many lawyers, alas, learn in their first-year Con Law class. Section Four of the Fourteenth Amendment states, at its outset, that "[t]he 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." This section was inserted into the Amendment because of a very real concern that Southern political leaders, and their Northern allies, would gain the upper hand in Congress in the 1866 or 1868 elections and vote to repudiate the national debt. The Lincoln administration had borrowed freely to finance the war machine. As Reconstruction dawned, white Southerners complained bitterly that they would now be taxed to repay the funds that had been borrowed to defeat their cause. "What, ruin us, and then make us help pay the cost of our own whipping?" one asked a Northern journalist in 1865. "I reckon not." Southerners were used to having their way in Congress--they had dominated the institution from 1787 until secession in 1861--and many believed that when their representatives arrived in House and Senate, they would be able to tear up the nation's IOUs. Section Four was the response; its language is extraordinary. First, it does not simply say that the national debt must be paid; it says that its "validity ... shall not be questioned." Only one other section of the Constitution--the Thirteenth Amendment's proclamation that "[n]either slavery nor involuntary servitude ... shall exist within the United States, or any place subject to their jurisdiction"--is as unqualified and sweeping. Second, it suggests a broad definition of the national debt: "...including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion." From this language, it's not hard to argue that the Constitution places both payments on the debt and payments owed to groups like Social Security recipients--pensioners, that is--above the vagaries of Congressional politics. These debts have to be paid, the argument would be, in full, on time, without question. If Congress won't pay them, then the executive must. On the other hand, the language could be seen as simply forbidding outright repudiation, not temporary default. Default on U.S. bonds would, in this analysis, not dispute the "validity" of the debt; it would simply delay repayment. But remember the strict language. Suppose you lend $10,000 to your cousin. When the debt comes due, he says, "Listen, I'm good for the money, but I'm a little short right now. Trust me, I will get it to you sooner or later." That's not repudiation. But on the other hand, you might think the validity was now at least being "questioned." For the Obama administration to adopt the broad reading of Section Four would be bold (and I hasten to say I don't expect them to do it); but it would hardly be unusual in the recent discourse of presidential power--especially the Republican party's theory of the presidency. The Speech Obama Could Give: 'The Constitution Forbids Default' Imagining a presidential address confronting Republicans who want to risk the nation's credit for political reasons My fellow Americans, I am speaking to you tonight to let you know the steps I have taken to ensure that America lives up to its obligations during the current political crisis. As you know, the continuing recession and the pressures of running two wars have made it necessary for the government to borrow money on the world market in order to meet our commitments at home and abroad, see to it that our armed forces receive their pay and equipment, and fulfill our obligations to the retired, the unemployed, and those in need of medical care. Unfortunately, Congress has not passed an increase in the statutory debt limit as the deadline approaches. Members of the House majority have informed me that they will not agree to an increase in the debt limit without imposing restrictions on the government budget that will threaten our nation's recovery, imperil the national defense, and cause widespread suffering. I have offered to negotiate in good faith, as I did during the budget crisis, but they have shown no interest in real negotiations. As of midnight tonight, the government's statutory borrowing authority will be exhausted. If no measures are taken, the government must either default on its bonded indebtedness or on its obligations to seniors on Social Security, to unemployed workers dependent on federal insurance payments, and to American service personnel serving in areas of armed conflict. That is what the Framers intended: to set the debt obligations of our country beyond the reach of Congressional meddling. For this reason, I have ordered that Secretary of the Treasury Timothy Geithner immediately begin issuing binding debt instruments on the world market sufficient to cover all the current obligations of the United States government, even in default of Congressional action to meet those obligations. I take this action to fulfill the oath I took as president of the United States. The Constitution explicitly requires me, under my duty to "take care that the laws be faithfully executed," to meet and pay all debts of the United States. This requirement is absolute. It is contained in Section Four of the Fourteenth Amendment, which directs, in no uncertain terms, that "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." This provision makes clear that both the monies our nation owes to bondholders, and the sums promised in legislation to those receiving pensions set by law from the federal government, must be paid regardless of the political whims of the current congressional majority. All obligations that the nation has undertaken by drawing on its credit must at all times be rendered current. As a former professor of constitutional law, I want to explain to you the origin of Section Four. After the Civil War, political leaders in the defeated South announced their intention of resuming their seats in Congress and of using their power--augmented by increased Congressional representation for the freed slaves--to compel the federal government either to pay off all debts of the Confederacy or to default on the national debt which had been borrowed to finance the Union war effort. They also intended to present to the nation a huge bill for what they claimed was the value of the slaves that had been freed by the Emancipation Proclamation and the Thirteenth Amendment. For this reason, the Framers of the Fourteenth Amendment wrote into our fundamental law an absolute prohibition against defaulting on the national debt. Its language establishes a complete firewall against the misuse of governmental power by one political faction to get its way by wrecking the public credit. Only one other provision of the Constitution--the Thirteenth Amendment's categorical prohibition on slavery--is as rigid as the language of Section Four. That language is not binding only on Congress, but on all parts of the government, including the executive branch. For nearly a century and a half, the absolute language of the Fourteenth Amendment was not even questioned. I regret to say, however, that today our nation faces exactly the threat Section Four was designed to guard against. A vocal and determined political minority--what our great Founder James Madison would have called a "faction"--is determined to use its dominance in one House of Congress as a weapon to circumvent the democratic process. It wants to find a back-door way to undo programs and policies that have been democratically enacted over a 75-year period. It wants to impose a narrow vision of government and America that has been rejected by our people repeatedly over the same period. This determined minority is now prepared to defy the Constitution to get its way. Some of its voices have begun to say that national default would be welcome, even if it wrecks our international credit and leads the U.S. to default not only on its bonded obligations but on the debts due to its armed forces in the field--debts that are even more sacred than "pensions and bounties for services" already performed by veterans in previous wars. Indeed, I am convinced that the only reason why the framers of Section Four did not explicitly include "payments to military personnel in the field during congressionally authorized military action" is that it was literally unthinkable even to the most hardened partisans among them that any faction within the United States Congress would countenance cutting off payments to those who carry our flag in foreign nations under hostile fire. Some may ask why I do not simply use my executive authority to juggle accounts and cook the federal books in order to pay the most pressing obligations while I implore this determined minority to honor their oaths to uphold the Constitution. I do not have the luxury of partial or halfhearted compliance with the absolute command of our nation's fundamental law. Section Four does not say that the national debt "shall be paid sooner or later," or "shall be stretched out as long as possible," or "shall be paid in some areas but not in others." It also does not say "shall not be questioned unless Congress really wants to." As long as I remain president, the national debt of the United States shall not be questioned. It says it "shall not be questioned." The national debt must be paid in full, on time, regardless of any political division within our Congress. That is what the Framers intended: to set the debt obligations of our country beyond the reach of Congressional meddling. Those obligations will not be questioned as long as I am president of the United States. This action requires me to authorize borrowing that is not in conformity with the debt-limit statute. But no congressional statute can command or permit our government to violate the Constitution. I find the debt limit, to the extent that it could be construed to require national default on any obligation of our nation, to be in the words of the great chief justice John Marshall, repugnant to the Constitution and thus void. I regret that the intransigence of a small minority of members of Congress have forced our nation into this situation. I know that some of these same political leaders will now charge me with violating the Constitution -- the same Constitution that they apparently have no desire either to read or to follow. If they truly believe this to be true, I challenge them to bring Articles of Impeachment against me. The charge should be that I did what was necessary to support our troops in the field, to bolster our public credit, and to prevent destitution and despair among American families. I welcome that debate. But as long as I remain president, the national debt of the United States shall not be questioned. That is my pledge to you, to the world, and to the memory of the brave men and women who gave the last full measure of devotion to rescue the United States from forces who long ago sought its destruction. Good night. And God bless America.