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.