Blog — Department of Justice
We’ve just stepped back from the precipice of the debt ceiling crisis created by the efforts of a small, but very vocal minority in Congress to hold our nation’s economy hostage to outrageous political demands. Unfortunately for the American people and the global economy, we are not out of the woods by a long stretch, with another debt ceiling deadline looming in early February. While the president by no means created this crisis, there is a legitimate question as to whether he could have prevented it by exercising his unilateral authority to raise the debt limit.
Legal scholars have posited the president has the power to borrow without congressional authorization through his inherent emergency powers, the authority of the Fourteenth Amendment, or what has been termed the “irreconcilable instructions Congress will have provided Mr. Obama if it fails to act.” The president and administration officials, however, have insisted only Congress has the constitutional authority to borrow money and increase the debt ceiling, purportedly relying on legal advice the president has received.
The real reason behind the president’s uncharacteristically narrow view of his powers and refusal to walk the nation back from an economic catastrophe may be due, as Adam Liptak of the New York Times has pointed out, to how unilateral action by the president would be viewed: “politically unattractive, unpalatable to the financial markets and subject to legal challenges.” But any risk/benefit analysis must start from the premise the president has the power to act, a power the president himself claims to lack.
This leads CREW to wonder just what legal advice has President Obama received? It is hard to imagine he would publicly insist he lacks authority to act in the face of such a crisis without someone in the administration taking a hard look at the question. This, after all, is an administration that has taken an expansive view of executive power. In the national security arena, for example, the president has claimed authority to conduct surveillance of U.S. citizens — amassing vast amounts of our personal data — and has justified the killing of American citizens abroad.
The go-to entity for legal advice on important policy issues generally is DOJ’s Office of Legal Counsel, which has authored many controversial legal opinions, such as the one issued during President George W. Bush’s term recognizing the authority of the U.S. to torture detainees. Questions regarding the debt ceiling, however, are firmly rooted in the Department of the Treasury’s purview. As a result, today CREW filed FOIA requests with OLC and the Treasury Department seeking any legal opinions and/or memos concluding President Obama must sit back and wait for Congress to raise the debt ceiling even if his inaction plunges our country — and potentially the world economy — into economic chaos.
We suspect the administration will not part with its legal analysis without a fight. But CREW is ready for that and is fully prepared to head to court to demand release of these records. The public needs all the facts as the political posturing begins again on whether and how to increase the debt ceiling in advance of the new February 7, 2014 deadline.
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