The Statue Of Liberty Play

There’s an old trick football play that, according to football lore, was used to win the game at the last minute. It involved the quarterback taking the snap from the center, falling back and pulling his throwing arm back as if to throw the ball way down field. Instead of releasing the ball, however, he holds it in his other hand, pumping the throwing arm as if it still holds the ball. He them hands off to a back, and is left there standing like the Statue if Liberty * with her torch, while the running back runs around behind him and takes the ball down the field for the touchdown and the game winning points. (He then does a little dance in the end zone, spikes the ball and points to the sky with his finger, thanking the Man who made it all happen). The play works because the defense sees a pass play forming and adjusts to guard the receivers, when in fact the running back is doing a fast sprint along the sideline to the goal before they realize they’ve been duped.

I was reminded of that play when I read this article about how to stick it to the Republicans who are holding our country hostage to their far right schemes for making the rich richer. It seems that they think they have Obama by the balls, because our debt limit has almost been reached, and (they think) without their consent to raise the limit, the government will have to default on its loan payments. Since Obama wouldn’t want to do that, the theory goes, he and his Democratic cohorts will accede to Republican demands to give in on more and more socially based cuts to the budget, while leaving the tax rates alone, if not reducing them. This of course, makes life for the middle class all that more onerous, while leaving the rich better off than they were before.

Original 2nd page of the 14th Amendment

The underlying premise behind this is that the debt limit must be extended in order for the day-to-day business of the government to continue. But it’s a pure legalism. This is where a the trick play comes into effect. The Constitution says that the debts of the United States are not to be questioned. The exact wording (of the 14th Amendment) is:

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.

The debt limit, however, is statutorily based. It only came into existence around World War I, to enable the President to be free from having to constantly go back to Congress every time he wanted to incur debt to manage the war. However, in a conflict between the Constitution and a statute, the Constitution always trumps the statute. Hence, the President could validly, and constitutionally, say “The debt limit be damned! I have to pay all of our debts according to the 14th Amendment, and I will do so. You Congress critters go off to a corner and bicker among yourselves and don’t bother me.”

You have to love that. Obama may just have his own little Statue of Liberty play. I hope he executes it .

*That picture of John Lennon has nothing to do with this post. I just like John Lennon.

5 thoughts on “The Statue Of Liberty Play

  1. I am going to approach this Constitutional debate from another angle. That President Obama would risk impeachment by NOT acting under the 14th Amendment to prevent default.

    Whether any of us like it or not it this debt ceiling debate is all about the “obligations” that Congress over time has signed into law, not the bonds.

    The ceiling raise has nothing to do with future spending, only that which has already been committed to by this and prior sessions of Congress over out history.

    We elected them, they act via their Constitutional responsibility passes laws/funding programs, we own it and has the “full faith and credit” of the US behind it. These are all laws that then need to be upheld, ie honored.

    The Constitution is by definition the original document plus any and all Amendments to it so trying to separate the two is a specious argument as well.

    In PERRY V. UNITED STATES, 294 U. S. 330 (1935)SCOTUS addreses the larger context of debt as “obligations” that further supports the notion that default would be unconstitutional and thus stopping it would be required of the President:

    “…The government’s contention thus raises a question of far greater importance than the particular claim of the plaintiff. On that reasoning, if the terms of the government’s bond as to the standard of payment can be repudiated, it inevitably follows that the obligation as to the amount to be paid may also be repudiated. The contention necessarily imports that the Congress can disregard the obligations of the government at its discretion, and that, when the government borrows money, the credit of the United States is an illusory pledge.

    We do not so read the Constitution….To say that the Congress may withdraw or ignore that pledge is to assume that the Constitution contemplates a vain promise; a pledge having no other sanction than the pleasure and convenience of the pledgor. This Court has given no sanction to such a conception of the obligations of our government.

    The Fourteenth Amendment, in its fourth section, explicitly declares: ‘The validity of the public debt of the United States, authorized by law, * * * shall not be questioned.’ While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the Civil War, its language indicates a broader connotation. We regard it as confirmatory of a fundamental principle which applies as well to the government bonds in question, and to others duly authorized by the Congress, as to those issued before the amendment was adopted. Nor can we perceive any reason for not considering the expression ‘the validity of the public debt’ as embracing whatever concerns the integrity of the public obligations.”

    The office of the President as “Chief Executive” is empowered by the Constitution that “he shall take Care that the Laws be faithfully executed”.

    He is also Constitutionally bound by his oath of office:

    “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

    This creates a slippery slope for any President. In other words he has no choice in acting per the Constitution lest he violate his oath and for that could be subject to impeachment.

    A secondary argument, slightly less compelling, is that in his job as Commander in Chief to protect the nation against any threats could be cited here. A default that plunges the nation into another recession and costs the taxpayers hundreds of billions in additional Federal interest payments and billions more in higher credit card, mortgage and consumer loans threatens the nation as much as any war or attack does. Not acting would weaken the nation considerably and his failure to protect the nation from this sort of “attack” would also be seen as a failure to fulfill his oath.

    So the 14th/PERRY V. UNITED STATES makes it clear on the debt’s validity and the fact that it cannot be abrogated in anyway that diminishes the full faith and credit of the nation and its trust with any one owed money via a statute approved by Congress, be it your mom on SS, a cleaning contractor for a federal building or foreign nations holding bonds. All are equally valid and must be honored.

    So no action by Congress is illegal and the Debt Ceiling law in any dispute is trumped by the Constitution. In “Perry” Chief Justice Hughes wrote the majority opinion: “We do not so read the Constitution…the Congress has not been vested with authority to alter or destroy those obligations.”

    Altering those obligations means that the terms of meeting them cannot be changed in anyway so even a default of a few days or a program to pay bills in some order with revenues is not allowed. So inaction that allows any sort of modification is out of the question as well.

    If Obama does not act to avert the crisis if negotiations fail that is a more compelling reason to Impeach than trying to claim that he exceeds his Constitutional power in resolving the crisis using the 14th.

  2. Mark my words– Obama is going to cave. They’ll close some small, meaningless, drop in the bucket loopholes in the tax code so that Obama can save a little face, but, generally speaking, the Republicans are going to fleece them just like they did with the Bush tax cuts.

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