(WASHINGTON) -- As fears intensify that Congress will not pass a debt limit increase in time to avoid default, some Democrats are pulling out their pocket Constitutions to find a back-up plan.
Assistant Minority Leader Rep. James Clyburn, R-S.C., said on Wednesday that if a long-term deal is not struck by Aug. 2, President Obama should sign an executive order raising the debt ceiling without Congressional approval. He said this action would be justified because of a section in the 14th Amendment that states that “the validity of the public debt...shall not be questioned.”
"I am convinced that whatever discussions about the legality of that can continue," Clyburn said. "But I believe that something like this will bring calm to the American people, and will bring needed stability to our financial markets."
The argument is that a default would put the “validity of the public debt” in jeopardy, thus violating the 14th Amendment. And since the president took a vow to “preserve, protect and defend the Constitution” it would then be his responsibility to ensure that the country does not default.
But constitutional scholars are divided over whether the amendment would, in fact, justify the president to unilaterally take action on the debt ceiling.
Laurence Tribe, a constitutional scholar at Harvard University and one of President Obama’s former professors, told ABC News earlier this month that the 14th Amendment must be upheld by Congress, not by the president.
“It’s a tempting [argument], but I think it’s fundamentally fallacious because it assumes that the executive branch is the branch of government that has the ability to enforce the 14th Amendment. Section 5 makes clear it is Congress that has that power,” Tribe said.
Obama seems to agree. At his University of Maryland town hall on July 22, the president said he does not believe he could use the 14th Amendment to raise the debt ceiling, even if there is no agreement by Aug. 3.
"I have talked to my lawyers," he said. "They are not persuaded that that is a winning argument."
But both the president and the Treasury Department have stopped short of saying Obama will not invoke the 14th Amendment if worse comes to worst. The idea is tempting, at least, to the president.
“Believe me, the idea of doing things on my own is very tempting,” Obama said Monday at the annual meeting of the National Council of La Raza.
If the president does decide to use the amendment, House Democratic Caucus Chairman John Larson said on Wednesday that “his caucus is prepared to stand behind him.”
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