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First, I must apologize for the lengthy title, which brings together three disparate, sometimes obscure, and controversial aspects of American law and politics. Two of these have been mentioned much recently, but one of them is less well-known, but just as important.

  • Youngstown Sheet And Tube Co. v. Sawyer was a court case where a steel company sued the Department of Commerce, and Harry S Truman, for seizing steel mills during the Korean War. In it, the Supreme Court found that Truman had acted outside of the bounds of his powers, and that the only powers that the Executive had were ones specifically put forth in the constitution.
  • The 14th Amendment to the Constitution, passed shortly after the Civil War, is mostly known for protecting people's rights from arbitrary restrictions, but recently, a lesser provision, included in Section 4, that "The validity of the public debt...shall not be questioned", has come to be an important part of debate.
  • The Debt Ceiling is the maximum amount of public debt that the executive is authorized to sell. As of this writing, the debt ceiling was raised at the last moment, after some rather...strenuous...negotiations.

Before today, there was some talk, perhaps more amongst the politically enthusiastic than those schooled in American law and politics, that the President (in this case, Barack Obama) had the authority to raise the debt ceiling, since failure to do so would mean default on the debt. The thought was, that if the Executive was not presented with authorization by the Legislature, it had implicit powers through the 14th Amendment provisions to service the debt as it saw fit.

And, with all due respect, that argument is a fairly convoluted piece of nonsense.

The first reason is that a refusal, or inability to pay a debt, is not the same as questioning its validity. If Congress were to declare the debt of the United States null and void, someone, probably a large holder of that debt, would have grounds (and standing) to sue and have that law overturned by The Supreme Court. However, a delay in payments is not the same as a "questioning of the validity".

But there is a much more important reason why the President can not do so, and that stems from Youngstown Sheet and Tube Co. v. Sawyer, and the decision that the President does not have any powers outside of those enumerated to him in the constitution. The two major ways that the President could pay off the debt were to authorize the sale of more debt, or to order the Treasury Department to run the printing presses. However, according to the Youngstown decision, the President can only act within his constitutional mandate, or by powers delegated to him by congress. Scanning the description of the President's duties within Article II, Sections 2 and 3, nothing close to this comes up. It would take quite a legal mind to shoehorn either of these powers into the powers that the President does have, such as granting pardons and receiving ambassadors. In fact, both of these powers are quite clearly enumerated as legislative powers, in Article I, Section 8. Therefore, it seems unlikely that the Presidency was intended to have these powers, and the Presidency is probably not intended to have the power to print money. In fact, no matter what we think of the current situation, the Founding Fathers were specifically against giving the Executive too much financial power, since the Executive's ability to do so could lead to the type of military or monarchical trappings that they were trying so hard to escape.

And in practical terms, even if it would have eventually been found out that the President does have the power to enforce that provision of the 14th Amendment by fiat, in realistic terms, there would have been a series of injunctions and counterinjunctions, and even in an expedited process, by the time the Supreme Court had weighed the issue of Executive versus Legislative power in the matter, there would have been a default, a global market crash, and we would all be eating gravel out of shredded up boots. In other words, in practical terms, taking such a course would have never reached a secure conclusion.

In general, I have been a little annoyed that much of this debate (like many other debates in American politics), on both sides of the political spectrum, has been about the perceived role, or lack of it, by the President. Even putting aside people's opinion on Barack Obama, this shows a typical misunderstanding of The Presidency's role in American politics. Because, while the President has many powers, there are many powers he lacks, and a President with a recalcitrant congress is fairly helpless. Despite the prestige associated with the office, the President is not the Head of the State, or the Government.

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