WASHINGTON -- The Obama administration is still refusing to disclose what its legal team concluded about the 14th Amendment option, which many progressives believe would allow the president to continue to pay the government's obligations if Congress refused to raise the statutory debt limit.
In January, ahead of what was sure to be another budget battle, The Huffington Post filed a Freedom of Information Act request with The Justice Department's Office of Legal Counsel, seeking documents regarding the office's advice to the president on the 14th Amendment option. Last week, the office rejected that request but acknowledged the existence of memorandums on the option -- meaning the Obama administration had at least given the option significant consideration.
Proponents of the option point to Section 4 of the 14th Amendment, which says that the “validity of the public debt of the United States, authorized by law, including debts incurred for payments of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” It follows, then, that the president could raise the government's borrowing limit, independent of congressional gridlock -- a potential way forward as the government again approaches a shutdown.
Five documents sought by the FOIA request, an Office of Legal Counsel lawyer wrote, "are protected by the deliberative process, attorney-client, and presidential communications privileges, and we have determined that none of them is appropriate for discretionary release."
The OLC previously declined to provide any 14th Amendment option memos during the latest budget fight back in 2011. But that was before White House spokesman Jay Carney stated directly that the administration "does not believe that the 14th Amendment gives the President the power to ignore the debt ceiling -- period."
House Minority Leader Nancy Pelosi (D-Calif.) said last week that she still believed the 14th Amendment route was an option, but the administration has not commented on the option during this latest battle over funding the federal government.
The sought-after documents would likely explain in detail why the administration does not believe the 14th Amendment allows the president to raise the debt ceiling limit without congressional approval. Yet, it is possible the memos conclude that the president could raise the debt ceiling limit, and the president simply disagreed with their advice.
If the U.S. hits the debt ceiling, the consequences could be even worse than those of the looming government shutdown. It would mean the government would default on its debt obligations, which could trigger another financial crisis. The government will likely run out of money around Oct. 17 unless some sort of deal is reached to raise the debt ceiling above the current $16.7 trillion number.