The 14th Amendment - the option that won't go away

Commentary By Ron Beasley

Obama has said no to the nuclear/14th Amendment option - just ignore the debt ceiling. But what if he doesn't have any choice?  It really doesn't matter if it's right or wrong but how the SCOTUS would react.  Jeffery Rosen takes a look at just that.

The most likely reaction might be to refuse to hear the case deciding that no one had standing.  Obama and the country win.  But what if they did decide to hear it?

The four liberal Justices would vote with Obama but what about the five conservatives.  This is where it gets interesting.  The Tea Party Justice, Thomas, would vote against Obama. but what about the other four? 

On the other hand, Roberts, Alito, and Scalia, if they remain true to their judicial philosophies, should reject this argument and rule for Obama, not Congress. All three have devoted their careers to defending a broad vision of executive power, and they might even embrace the argument that Obama doesn�t need to rely on the Fourteenth Amendment; instead, he can raise the debt ceiling on his own, by invoking what Eric Posner and Adrian Vermeule have called �his paramount duty to ward off serious threats to the constitutional and economic system.� In addition, the nationalistic instincts of the three pro-executive justices have led them to be consistently sympathetic to business interests, who in this case might support any presidential action that avoids default.

That leaves us with the Libertarian Justice, Kennedy.

Where does that leave the libertarian justice, Anthony Kennedy? He has no hesitation about the idea that courts�by which he means himself�should adjudicate battles between the president and Congress, and although he is all over the map on the issue, he tends to side with Congress rather than the president when forced to choose. This is what happened, at least, in cases involving Bush�s attempt to set up military commissions at Guantanamo without Congressional approval, for example, or in cases involving the Bush Environmental Protection Agency�s refusal to regulate greenhouse gas despite a Congressional law to the contrary. Still, Kennedy views himself as a responsible actor whose duty is to prevent economic and political chaos, as Bush v. Gore showed. In the spirit of caution, let�s chalk him up as a tentative vote for Congress over Obama.

So Obama wins by a 7-2 margin or perhaps even an 8-1 margin.  Of course then the real circus begins - the Republican base would insist that the House Republicans impeach Obama.  It will go nowhere of course and might be enough to guarantee Obama's reelection.