Skeptic Project

No one knows. So far as I know the debt clause of the 14th Amendment has never been invoked or tested in court, at least not in any sense it's likely to be relevant to today's debt debate.

The clause was put in place to make sure debt instruments issued by the US government to finance the Civil War would not be challenged, and also to make sure that debts run up by the Confederate side wouldn't be held valid. It's not specific enough to indicate who can use it affirmatively or under what circumstances, or even if it CAN be used affirmatively at all.

I understand Bill Clinton has advised Obama to use this clause to justify a unilateral raising of the debt ceiling, and then dare the courts to stop him. That's risky but if Congress still refuses to play ball, it might be the only option out there.

No. An impeachment over this is highly unlikely.

Impeachment must be for "high crimes and misdemeanors." Even if the courts ultimately rule that Obama had no power to invoke the 14th Amendment in this way, that doesn't mean it's a crime. A crime is an actual violation of a statute with a criminal penalty. There is no criminal penalty for invoking the 14th Amendment in excession of presidential power. There would be no grounds for impeachment.

Furthermore, impeachment is a partisan process. In order to impeach the House of Representatives must pass articles of impeachment and the Senate then takes the penalty phase. Even with a Republican-controlled House, in the absence of any clear crime, it would be a stretch to think that non-Tea Party Republicans would even vote for impeachment articles, and even if they did, there aren't even a fraction of the votes needed in the Democratic-controlled Senate to remove him from office. What would be the point? Republicans already rammed through a doomed impeachment once, and the political costs they'd pay for trying it again would be brutal--especially if the "crime" Obama supposedly committed was to rescue the nation's finances from Republican malfeasance.

The situation is different than Clinton in the 90s. In that case at least everybody could agree on the crime that Clinton supposedly committed (perjury). That's not to say that everybody agreed he committed it, but there was no question that at least perjury exists as a crime and the legal question was whether or not Clinton did it and should be removed from office for it.

It would take at least six months to get impeachment rolling anyway which would put it in the midst of the 2012 election season. Even if the Teabaggers were all for trying to impeach during an election cycle, the Democrats would have the argument, "Why impeach? If he's so bad just wait two months and vote him out." Assuming a rational candidate like Romney gets the nomination, it'd be such a political minefield that the Republican party bosses would never do it, especially if it's doomed to fail in any event. If there was a live impeachment on the table during the election Republicans would be too afraid that voters would turn on them and re-elect Obama just to thwart it.

One of the few up sides of Clinton's impeachment was that it basically took that option off the table except in really extreme, clear-cut cases. If they tried to impeach Obama over using the 14th Amendment to solve the debt crisis, impeachment would become a political tool, totally debased (if it isn't already). It would backfire badly.

If the 14th Amendment is invoked and the courts say the President cannot use it does that mean they would have to drop the Debt Ceiling down to where it is now?

No. It just means he (or any other president) couldn't ever do it again. By the time the determination is made, the present crisis on the debt ceiling will long be over with.

I don't know if Obama specifically ruled out using the 14th Amendment. Knowing him, if he has made a statement about it he probably hedged his bets (after all, he is a gifted lawyer). Personally I think that if Congress refuses to act, Obama using the 14th Amendment unilaterally is a win-win. I don't see a downside, legally, fiscally or politically. There's only a down side if there is still the possibility of any other option.