...and if Obama ignored the Congress and simply raised the debt ceiling on his own?

PJP Faculty Member Jeffrey Rosen speculates how the Supreme Court might decide

Last week, President Obama decided not to pursue the option of raising the debt ceiling without Congressional approval. That idea (see earlier post below) had been raised by proponents of a strict reading of the Fourteenth Amendment, which says, in part, that "the validity of the public debt of the United States, authorized by law, … shall not be questioned.” Like so much of the Constitution, the original history is instructive. As PJP Faculty Member Jeff Rosen points out today in The New Republic Daily, the phrase was written to counter the efforts of former Southern rebels who had been newly elected to Congress and had plans to overthrow the government by repudiating the Union debt and assuming the Confederate debt. Yet in 1935, the Supreme Court ruled that this language could be read to apply to any government obligation. So, let's say that Obama stopped waiting for Congress and simply raised the debt ceiling on his own. If he was then sued, and the issue went to the Supreme Court, says Rosen, the four so-called "liberal" justices -- Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg, and Stephen Breyer -- would go with Obama. The five conservatives, however, might not vote as a bloc. Chief Justice John Roberts, Antonin Scalia and Samuel Alito, if they remain true to their judicial philosophies, would have to weigh their judgement according to a well-defined history of defending a broad vision of executive power. Rosen sees them going for Obama, resulting in a 7-2 victory for the president. But he also concedes that the three conservatives justices might ignore their own philosophies meaning that the decision would end up following party lines against him, 5-4.

"Watching the Cars Crash": the Constitution's Place in this Summer's Debt Limit Discussions

What role has the Constitution played in the persistent argument over raising the debt ceiling? There is the Republican push for a constitutional amendment requiring a balanced budget (which I will address in a later post) and the Democratic argument, now abandoned, that the Fourteenth amendment makes it unnecessary for the President to get Congressional approval on raising the debt ceiling since, as section four of that amendment reads, "the validity of the public debt of the United States, authorized by law, including debts incurred for the payments of pension and bounties for service in suppressing insurrection or rebellion shall not be questioned."

This Democratic position created one of the more theatrical moments of the months-long debate when, at a Politico breakfast attended by dozens of reporters earlier in the summer, Treasury Secretary Timothy Geithner waved a copy of the Constitution and asked, rhetorically, of the president's Republican opponents: "Have you read the Fourteenth Amendment?" The statement surprised many in the audience since it was thought that any attempt to shut Congress out of the process would be politically disastrous, and, indeed, despite former President Bill Clinton chiming in to support the position, last Friday President Obama took it off the table. “I have talked to my lawyers,” said Obama, of the Fourteenth Amendment reasoning. “They are not persuaded that that is a winning argument.”

Out of the 77,000 National Rifle Association (NRA) certified firearms trainers only 1,700 are women...

2011 PJP Fellow Angela McKenzie found one proud Second Amendment advocate in Poughkeepsie, N.Y.'s JACKIE EMSLIE.

You can hear her profile of Emslie here.

2011 PJP Fellow Andrew Hedlund asks: Does the mere imposition of a debt ceiling violate the 14th Amendment?

Section Four of the Fourteenth Amendment asserts that "the validity of the public debt of the United States, authorized by law...shall not be questioned." So, does President Obama really need to get Congressional approval to raise the debt ceiling? Andrew Hedlund, a 2009 PJP Fellow and a student at Arizona State University, published this discussion on the issue in the Tempe, Arizona East Valley Tribune.

"Which pledge is most important... the pledge to uphold your oath to the Constitution of the United States or a pledge from a special interest group who claims to speak for all American conservatives when, in fact, they really don't? The fact is we have enormous urgent problems in front of us that have to be addressed and have to be addressed in a way that will get 60 votes in the Senate... and something that the president will sign... Where's the compromise that will save our country?"


Senator Tom Coburn, Oklahoma (R), speaking back in April on the debate over raising the debt limit. Ever since, Coburn has been chastised by editorial writers back in his home state who point to his signature on the "Taxpayer Protection Pledge," the work of a conservative activist organization (Americans for Tax Reform). The Pledge commits signers to opposing "any net reduction or elimination of deductions and credits, unless matched dollar for dollar by further reducing tax rates.” It has been joined by 236 Congressmen (all but two of them Republicans) and 41 senators (all, except Sen. Ben Nelson of Colorado, Republican).

Did the Court's 2003 Ruling in Lawrence v. Texas inevitably lead to this?

Of Reality Shows, Polygamy, Sodomy and the Constitution

When, in 2003, the Supreme Court ruled that intimate, consensual sexual activities were protected by the the due process clause of the 14th amendment, invalidating a Texas law prohibiting sodomy, Justice Antonin Scalia, in dissent, wrote that if legislatures were now to be banned from enacting laws that made moral choices, then why stop with sodomy? Shouldn't the Court also invalidate laws against bigamy, adult incest, prostitution, bestiality?

Well, here we go. In a case made for the 21st century, reality TV star Kody Brown and his four wives, Janelle, Christine, Meri, and Robyn, are challenging the state of Utah's ban on polygamy by arguing that, much like Texas's now invalid law against sodomy, the Utah law prosecutes them for their intimate, consensual relations. Brown, who appears with his four partners in the TLC reality program "Sister Wives," is being represented by Jonathan Turley, a professor at the Georgetown Law Center. In his complaint, Turley actually makes seven claims for relief: due process, equal protection, free exercise of religion, freedom of speech, freedom of association, and the ban on the establishment of state religion (the family claims polygamy as a religious practice). The Browns' appearance on TLC led Utah authorities to begin a criminal investigation. The "plural family," as they prefer to be known, has since fled to nearby Nevada.

Turley insists that the suit is in the spirit of the great justice Louis Brandeis who argued that one of the defining principles of America is "the right to be left alone." You can read the complaint on Turley's blog and search through dozens of posts on other laws he argues should be invalidated by the Court's ruling in Lawrence.

THE WORD "GOD" NEVER APPEARS IN THE CONSTITUTION AND ARTICLE VI DECLARES THAT THERE SHALL BE "NO RELIGIOUS TEST" FOR PUBLIC OFFICE, SO WHY ARE SO MANY AMERICANS WORRIED ABOUT THE PROSPECT FOR A MORMON PRESIDENT? PJP PARTICIPANT JEFF GREENFIELD SPECULATES

Two of the prominent Republican candidates for president are Mormons: former Utah governor John Huntsman and former Massachusetts governor Mitt Romney. Should their religion give voters pause? Despite the Constitution's ban on a "religious test" for office, many remain concerned. Here Jeff Greenfield discusses why.