There is more and more talk, especially among House Democrats, that if no compromise can be reached on the debt ceiling by August 2nd, Obama should assert his power under the 14th Amendment to raise the ceiling himself by executive order. Bill Clinton helped pave the way for this resurgent interest in the “constitutional option” by saying, in an interview with Joe Conason last week, that if he were in Obama’s shoes he’d do so “without hesitation.”
Of course, a cynic might suspect that a former president, no longer burdened by the pressures of actually having to govern, would be tempted to advise actions more brave and bold than he himself was willing to take when he in power. But as I have noted before while in office Clinton, like many other presidents—FDR, Truman—was perfectly willing to negotiating the outer limits of the law when occasions demanded it:
late 1994, the Mexican peso collapsed, threatening a global financial meltdown. When Congress refused to support a White House request for an emergency $40 billion package of loan guarantees, Bill Clinton unilaterally extended a $20 billion line of credit to Mexico by tapping the Exchange Stabilization Fund, an obscure federal account that presidents had hitherto used only to shore up the dollar. Many conservative Republicans and labor-oriented Democrats cried foul, but Clinton’s move had the desired effect: the peso stabilized, and Mexico repaid the loans ahead of schedule.
Clinton faced such a hostile and aggressive Congress that sometimes his only defense was to go on executive offense. In 1996, after vetoing numerous bills that would have allowed coal mining companies to dig up remote and pristine tracts of public land in southern Utah, a fed-up Clinton declared 1.7 million acres of that land as the new Grand Staircase-Escalante Monument, thus protecting it from further development. He did so by invoking the 1906 Antiquities Act, a law originally meant to give presidents the power to safeguard land with sites of significant historic or scientific value. The Utah land contained such sites, and previous presidents had similarly used the Antiquities Act to protect large wilderness areas (the Grand Canyon National Park had started off this way), though never an area so large in size. Conservatives went ballistic. Rep. Duncan Hunter called Clinton’s move “something that I think would happen in the former Soviet Union or some Third World dictatorship.” Hunter would later become a staunch defender of George W. Bush’s right to torture terror suspects and tap domestic phone lines without warrants.
While the debt ceiling standoff is a bigger deal than even the Mexican peso crisis was, the point is that Clinton—who, like Obama, taught constitutional law–has arguably a better feel for the position Obama finds himself in than just about any person on Earth. So when he says he would invoke the 14th Amendment powers “without hesitation,” I suspect that means Obama will, too.