How Would the Supreme Court Rule on Obama RAISING The DEBT CEILING Himself?

Segami

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Sat Jul-30-11 09:35 PM
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How Would the Supreme Court Rule on Obama RAISING The DEBT CEILING Himself?

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" �I�ve talked to my lawyers,� President Obama said in explaining his dismissal of the argument that Section Four of the Fourteenth Amendment authorizes him to raise the debt ceiling if Congress fails to act. �They are not persuaded that that is a winning argument.� But who are President Obama�s cowering lawyers, and why would the former constitutional law professor defer to their overly cautious prediction that the Supreme Court would rule against Obama if asked to adjudicate a dispute between the president and Congress? In fact, it�s far more likely that the Court would refuse to hear the case. And even if the justices did agree to hear it, the conservative justices would be torn between their dislike of Obama and their commitment to expanding executive power at all costs. If all the justices are true to their constitutional philosophies, the Court would rule for Obama by a lopsided margin.

As Matthew Zeitlin has argued in TNR, if Obama invoked the Fourteenth Amendment to raise the debt ceiling unilaterally, the most likely outcome is that the Supreme Court would refuse to hear the case. The conservative justices have long required clear evidence of legal �standing� before opening the courthouse door�something they showed in their recent 5-4 decision rejecting a taxpayer�s challenge to an Arizona school vouchers program�and it�s hard to imagine who could establish enough of a legal injury to establish standing in this case. Individual senators and representatives wouldn�t have standing to sue on their own, according to a 1997 Supreme Court precedent, and although the House and Senate could, in theory, pass a joint resolution asserting that the president has injured Congress by usurping its power, they�re unlikely to find the votes to do so. (If the House alone passed a resolution asserting a constitutional injury, its legal status is less certain.)

When it comes to individual taxpayers, they�re likely barred from establishing standing to sue by the definitive precedent on the debt clause of the Fourteenth Amendment, the 1935 Perry case. In that case, a bondholder asserted that the Congressional joint resolution taking the U.S. off the gold standard violated section Four of the Fourteenth Amendment, which says: �The validity of the public debt of the United States, authorized by law, � shall not be questioned.� The Court, in an opinion that supports Obama�s position in every respect, expansively interpreted the constitutional text and said it did indeed prohibit any government policy that �concerns the integrity of the public obligations.� But the Court went on to say that although the bondholder had suffered a constitutional injury, he had no legal standing to sue, since it was impossible to calculate precisely how much of an economic loss he had suffered.

In addition to their concerns about legal standing, the conservative justices have also, in other cases, said that the courts should refuse to hear cases that raise �political questions��in other words, cases that raise the possibility of �embarrassment from multifarious pronouncements� by the president, Congress, and the Supreme Court on the same legal issue. Nevertheless, Bush v. Gore showed that the conservative justices can abandon their longstanding devotion to construing standing requirements narrowly and the �political question� doctrine broadly when their political passions are high. So let�s imagine, for the sake of argument, that the Roberts Court agreed to hear the case of Obama v. Boehner and decide it on the merits. How would the justices rule?

cont'

http://www.tnr.com/article/politics/92884/supreme-court-obama-debt-ceiling

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