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Wed Oct 2, 2013, 06:33 PM

Should the White House be talking to the Supreme Court Justices...?

What is the procedure to get the Supreme Court to rule on a case? Does the Congress have the right to not pay our debts? Does the President have the authority to execute the laws? Does the 14th Amendment apply to the Congress? Would it be too much of a gamble to ask the Supreme Court to rule on the authority of the Congress to not pay our debts?

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<snip>
Proponents of the option point to Section 4 of the 14th Amendment, which says that the “validity of the public debt of the United States, authorized by law, including debts incurred for payments of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” It follows, then, that the president could raise the government's borrowing limit, independent of congressional gridlock -- a potential way forward as the government again approaches a shutdown.

http://www.huffingtonpost.com/2013/09/30/14th-amendment-option_n_4018599.html

37 replies, 1902 views

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Reply Should the White House be talking to the Supreme Court Justices...? (Original post)
kentuck Oct 2013 OP
yuiyoshida Oct 2013 #1
kentuck Oct 2013 #3
elleng Oct 2013 #2
kentuck Oct 2013 #4
longship Oct 2013 #5
kentuck Oct 2013 #7
longship Oct 2013 #14
kentuck Oct 2013 #15
longship Oct 2013 #16
kentuck Oct 2013 #17
longship Oct 2013 #22
kentuck Oct 2013 #25
longship Oct 2013 #28
kentuck Oct 2013 #31
longship Oct 2013 #33
elleng Oct 2013 #6
pinboy3niner Oct 2013 #24
former9thward Oct 2013 #8
kentuck Oct 2013 #9
former9thward Oct 2013 #10
G_j Oct 2013 #11
kentuck Oct 2013 #12
lastlib Oct 2013 #13
treestar Oct 2013 #18
kentuck Oct 2013 #20
Nye Bevan Oct 2013 #21
treestar Oct 2013 #27
Nye Bevan Oct 2013 #35
MFrohike Oct 2013 #19
kentuck Oct 2013 #23
pnwmom Oct 2013 #26
kentuck Oct 2013 #29
MFrohike Oct 2013 #30
djg21 Oct 2013 #32
kentuck Oct 2013 #34
strategery blunder Oct 2013 #36
2banon Oct 2013 #37

Response to kentuck (Original post)

Wed Oct 2, 2013, 06:35 PM

1. Who ever can help... I saw an article on here a day back..

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Response to yuiyoshida (Reply #1)

Wed Oct 2, 2013, 06:40 PM

3. Or the President could go ahead...

and execute the laws per our Constitution and our 14th Amendment and let the Congress take it to the Supreme Court if they wanted to..

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Response to kentuck (Original post)

Wed Oct 2, 2013, 06:36 PM

2. 'Talking,' NO, highly improper.

Bringing relevant and necessary cases, absolutely!

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Response to elleng (Reply #2)

Wed Oct 2, 2013, 06:41 PM

4. Do they talk...?

When they bring relevant and necessary cases?

Do you think they should bring it before the Supreme Court??

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Response to kentuck (Reply #4)

Wed Oct 2, 2013, 06:50 PM

5. Only via the Solicitor General (or another lawyer) and only through channels.

The USA has strict separation of powers between the three branches -- read your Constitution (the latter to OP, not responders).

It would be extraordinarily improper for the President to communicate officially with a SCOTUS justice. That would certainly result in an investigation and could result in impeachment proceedings.

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Response to longship (Reply #5)

Wed Oct 2, 2013, 07:20 PM

7. Thanks.

Then how do they bring the case? Doesn't the Solicitor General work for the Executive Branch??

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Response to kentuck (Reply #7)

Wed Oct 2, 2013, 10:06 PM

14. Well, the Solicitor General is the President's advocate through the DOJ.

Or at least that's how it works out in practice with respect to SCOTUS.

But because of the separation of powers the relationship is based on procedures established at the founding, I would imagine.

IANAL. But I do know that the POTUS cannot just ring up a SCOTUS justice. He can have a lawyer file something with the court. AFAIK, that would normally fall to the Solicitor General, or some other lawyer within DOJ.

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Response to longship (Reply #14)

Wed Oct 2, 2013, 10:10 PM

15. That makes sense.

The President would not personally contact the Supreme Court, I would not think?

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Response to kentuck (Reply #15)

Wed Oct 2, 2013, 10:17 PM

16. I think that would be a really good way to get impeached and removed from office.

But, I may be talking out of my hat.

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Response to longship (Reply #16)

Wed Oct 2, 2013, 10:21 PM

17. I don't think they could get two-thirds of the Senate to remove him from office?

I could not see that.

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Response to kentuck (Reply #17)

Wed Oct 2, 2013, 10:34 PM

22. That's what Nixon thought, too.

Until he was disabused of that thinking.

Obstructing justice and abuse of power is not to be trifled with. The POTUS cannot use the power of his/her office to directly influence the courts on any manner in any case. Not even Nixon tried that. But he was a lawyer and would have known it was a no-no.

Still, the Saturday Night Massacre was bad enough. (We're approaching the 40th anniversary this month.) It's what kicked impeachment into high gear. Still, it was nine months before the bill of impeachment was approved by the House Judiciary Committee and Nixon's subsequent resignation in the face of inevitability.

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Response to longship (Reply #22)

Wed Oct 2, 2013, 10:39 PM

25. I think most folks agree with you on that point.

However, I have heard of a fast track to getting an issue in front of the court? I think this is something that the President should keep on the table. Not saying that he hands a justice a hundred dollar bill under the table. Nobody believes that.

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Response to kentuck (Reply #25)

Wed Oct 2, 2013, 10:46 PM

28. Possibly. But they'd file the case through DOJ.

I may be full of shit on this, but I don't think so. I guess I have to just shrug. You're getting into esoteric matters where experts in law should decide.


Thankfully President Obama likely knows the limits and powers of his office.

As always,
Best regards.

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Response to longship (Reply #28)

Wed Oct 2, 2013, 10:50 PM

31. Personally...

I would prefer to see the President take it upon himself to protect our nation from default, if it ever reaches that point. I think he would have that authority.

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Response to kentuck (Reply #31)

Wed Oct 2, 2013, 11:02 PM

33. I am with you all the way, kentuck.

But the House Republicans smell blood in the water. I would prefer that PBO not add any chum to it before he jumps in. (So to speak.)

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Response to kentuck (Reply #4)

Wed Oct 2, 2013, 06:50 PM

6. When there is a 'case and controversy,' yes,

they 'talk' through their filings, they don't hang around and lobby.

The Case or Controversy Clause of Article III of the United States Constitution (found in Art. III, Section 2, Clause 1) has been deemed to impose a requirement that United States federal courts are not permitted to hear cases that do not pose an actual controversy — that is, an actual dispute ...

A term used in Article III, Section 2, of the Constitution to describe the structure by which actual, conflicting claims of individuals must be brought before a federal court for resolution if the court is to exercise its jurisdiction to consider the questions and provide relief.

A case or controversy, also referred to as a Justiciable controversy, must consist of an actual dispute between parties over their legal rights that remain in conflict at the time the case is presented and must be a proper matter for judicial determination. A dispute between parties that is moot is not a case or controversy because it no longer involves an actual conflict.

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Response to elleng (Reply #2)

Wed Oct 2, 2013, 10:34 PM

24. +1

Thanks for bringing the facts about the legal proprieties.

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Response to kentuck (Original post)

Wed Oct 2, 2013, 07:27 PM

8. The White House has rejected this.

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Response to former9thward (Reply #8)

Wed Oct 2, 2013, 07:39 PM

9. I think I might ask for a couple of more opinions...

...other than the two White House advisers? I don't think it is wise to so quickly close that door.

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Response to kentuck (Reply #9)

Wed Oct 2, 2013, 07:43 PM

10. It was not just two advisers.

At a press conference Monday, President Obama confirmed that he would not use the 14th Amendment to unilaterally raise the debt ceiling unless both houses of Congress gave him the express authority to do so.
“If [Congress] wants to put the responsibility on me to raise the debt ceiling, I’m happy to take it,” he said. “But if they want to keep this responsibility, then they need to go ahead and get it done.”


http://tv.msnbc.com/2013/01/14/president-obama-backs-away-from-invoking-14th-amendment-on-debt-ceiling/

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Response to kentuck (Reply #9)

Wed Oct 2, 2013, 07:45 PM

11. agreed

though some think the GOP might try to Impeach. about their speed..

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Response to former9thward (Reply #8)

Wed Oct 2, 2013, 07:50 PM

12. They do have a credible argument...

<snip>
Pfeiffer said employing such a tactic is impractical.

“Would people buy bonds that are legally questionable?” he said. “If you were buying a car, would you ever buy a car when the title was in doubt? The answer to that question is no.”

“I don’t know why we would assume that investors would buy bonds that are legally in question, that could at any day be invalidated by a court,” he said. “So it is an impractical solution to the problem.”

Proponents cite the language of the 14th amendment, which says that the “validity of the public debt of the United States, authorized by law, including debts incurred for payments of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.”

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Response to kentuck (Reply #12)


Response to kentuck (Original post)

Wed Oct 2, 2013, 10:25 PM

18. The US Supreme Court does not do advisory opinions

There has to be a case with an issue in controversy.

Obama could just do it and then get sued by some teabagger saying it was unconstitutional. There'd be the whole bit about taxpayer standing. It could actually be quite interesting.

Though I think Obama did not think much of the argument.

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Response to treestar (Reply #18)

Wed Oct 2, 2013, 10:29 PM

20. How did they get Justice Roberts to rule on the constitutionality of the ACA?

How did they bring it before the Court?

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Response to kentuck (Reply #20)

Wed Oct 2, 2013, 10:32 PM

21. Several states sued to overturn the ACA.

Some courts ruled in favor, and some against. The appeals went all the way up to the SCOTUS.

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Response to Nye Bevan (Reply #21)

Wed Oct 2, 2013, 10:41 PM

27. Who could have standing the challenge the legality of the debt ceiling?

I would think maybe that would be something the President and only the President could do. Or perhaps the creditors of the US.

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Response to treestar (Reply #27)

Wed Oct 2, 2013, 11:23 PM

35. One suggestion I read was holders of credit default swaps.

But it's a tricky question and I don't think anyone knows for sure.

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Response to kentuck (Original post)

Wed Oct 2, 2013, 10:27 PM

19. Hell no

The court is a legal arbiter, not a political arbiter. The elected branches are equal to the court and have the same authority to interpret the constitution as the court. Substituting the judgment of the court for the judgments of the two elected branches and the people would actually be that rarest of all creatures, judicial activism.

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Response to MFrohike (Reply #19)

Wed Oct 2, 2013, 10:34 PM

23. In that case...

The President can invoke the 14th Amendment and ignore the wishes of the Congress, in regards to the debt limit?

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Response to kentuck (Reply #23)

Wed Oct 2, 2013, 10:41 PM

26. Lots of legal authorities say he could. Then it's up to Congress

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Response to pnwmom (Reply #26)

Wed Oct 2, 2013, 10:46 PM

29. Thanks! Excellent read!

<snip>
The contrary view — that the president must sit helplessly as the economy collapses, fettered by a reading of an 18th-century document that not even the founders would have believed appropriate — reflects a legalistic mentality that none of our great presidents has possessed or acted on.
===============

It would take a President with a lot of courage to challenge the Congress in such a way, I would think?

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Response to kentuck (Reply #23)

Wed Oct 2, 2013, 10:48 PM

30. I say yes

Presidential misconduct has had a remedy for over 200 years: impeachment and removal. Impeachment is inherent political, though it takes a legal form. The court, with the exception of the CJ, simply has no role in political disputes like this. Just about every time the court does wade into a political dispute, we end up with "brilliant" decisions like Dred Scott or Plessy.

I haven't given the matter a lot of thought but I suspect invoking full faith and credit would be less likely to trigger after-the-fact court intervention than allowing a default. If he invokes it, the debts get paid and nobody gets a cause of action to sue Uncle for unpaid obligations. The government was allowed to issue the bonds, so there's an implicit authorization to pay them. Given that, and the fact that individual representatives rarely have the standing to sue in a dispute with the executive, the only real question is whether he can pull it off politically. Personally, I usually dislike the president's "reasonable adult" persona because it's too evenhanded even from an objective view. That being said, I think it would be an asset in selling this policy because the reasonable adult pays his bills. It's really hard to beat an argument about responsibility with some diatribe about FREEDOM!!!11!!!

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Response to kentuck (Original post)

Wed Oct 2, 2013, 10:53 PM

32. SCOTUS WOULD NOT HAVE ORIGINAL JURISDICTION.

The Supreme Court only has original jurisdiction (jurisdiction to hear cases in the first instance) in the few limited circumstances set out in 28 U.S.C. Sec.1251, which provides:

(a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.
(b) The Supreme Court shall have original but not exclusive jurisdiction of:
(1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
(2) All controversies between the United States and a State;
(3) All actions or proceedings by a State against the citizens of another State or against aliens.

Otherwise, the Supreme Court may grant certiorari to hear cases appealed from a state's highest court or cases that have made their way through federal appellate courts.

Here' a nice discussion of the Supreme Court's original jurisdiction: http://www.law.cornell.edu/wex/original_jurisdiction

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Response to djg21 (Reply #32)

Wed Oct 2, 2013, 11:03 PM

34. Thanks!

Very educational.

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Response to kentuck (Original post)

Wed Oct 2, 2013, 11:49 PM

36. This is the way I see it,

and I should preface this with I am not a lawyer.

The President doesn't want to use the 14th option, but God forbid the House of Representatives allows this fiasco to drag out until the 17th and Obama is faced with "The Government will run completely out of money reserves and borrowing authority in the next 60 seconds."

At this point, I see not one but four options:

1) President says we pay as we go. All government expenses are paid as receipts come in. Honoring the national debt comes before anything else, including national security and defense. There would be enough inflow to keep the national debt serviced, but everything else including essential government services would get hammered. Very, very, very badly. If not eliminated entirely. Massive austerity on a scale not even before seen under Hoover results, we enter the Greater Depression.
2) Call up the Treasury, the Federal Reserve, and start printing. I'm not sure to what extent this is even an option because I don't really know if this would involve "borrowing" from the Federal Reserve, and thus breaching the debt ceiling. Cue Weimar Republic hyperinflation.
3) Default. I don't think I need to explain this one.
4) The 14th Option.

By this point, I suspect the President will have very strong public backing/a mandate for Option Number Four. If the President's hand is truly forced literally at the last minute (God forbid), it is the least bad option. Don't get me wrong, it's still a bad option as no one would know if the bonds would later be invalidated and therefore the interest rate would skyrocket, taking the economy crashing down with it. But the other available options, should the Cruz Missile Kamikaze Party force the Union to that point, are even worse. (While Option 2 might superficially seem like an alternative, it will almost certainly lead to hyperinflation, whereas Option 4 at least has a reasonable shot at containing the damage, especially should it later be upheld.)

If it comes to the 14th, the Congress (in practice, the House of Representatives, as the Senate has the grown-ups in that room) then has two options:

1) Ratify the President's actions. The subsequent debt issues are honored, the economy is shaken badly, but it might (eventually) be recoverable if the Republicans self-destruct and leave the grown-ups in charge to clean up the mess.
2) Or they could sue the executive to have the debt ceiling breach declared unconstitutional. This would take a while to work its way up to SCOTUS (at which point I'm sure Wall Street will be ringing up its servants demanding they affirm the 14th in an attempt to salvage the economy, judicial ethics be damned). Horrific economic damage occurs in the meantime, but if the SCOTUS upholds the 14th Option, Republicans self-destruct and responsible adults are left to try to clean up the mess (but it will take much longer than it would if Congress had assented to the 14th in the first place).

The President doesn't want to use the 14th. His authority to do it is untested and tenuous. If the Congress should fail to honor its responsibilities, it is his last option to save the country. The public would support him doing what he must, but would the courts?

He will do what he must. But of course he will hold his cards close to his chest, and deny that he would openly defy the recalcitrant House until the choice becomes either that or allowing the Union to implode.

I don't want to go back to 1860. Why is it come to this, that I even have to contemplate the day being barely more than two weeks away.

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Response to kentuck (Original post)

Thu Oct 3, 2013, 01:40 AM

37. This was an excellent post/thread...

 

The kind of stuff I like to see more of on DU.

A manufactured crises has been created by a faction of the Republican party (i refuse to use the term "GOP" if not psychotic, certainly sociopathic) is holding our country hostage - what the hell can actually be done about that?

I love the questions, the various responses based on historical grounding, and offered with various points of views in a manner which conversations should happen, and I got to learn some things I hadn't known before.

Bravo to everyone here...



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