Debt ceiling fetishes...
The kabuki dance over whether Republicans will really force the issue of the US defaulting on bond payments for the first time in our constitutional history is rather annoying to me. Republican leaders have supposedly told the business leaders they pal with it is a kabuki dance, so why do we have this breathless pretense going on about a crisis?
The argument that Jack Balkin has raised, which is the 14th Amendment provision concerning public debt will allow Obama to override Congress to protect the public debt from being repudiated, is interesting, but not quite persuasive to me. Courts are best advised to steer clear of that sort of argument as it initially strikes me as more of a "political question" that Courts should refrain from opining as a matter of law.
Right now, I find it more intriguing, from a policy perspective, for Congress and the President to declare that the debt ceiling is akin to the filibuster or a fetish like those who pine for the gold standard--and therefore should be abolished. Would we really be having this silly argument at all with Republicans if there was no debt ceiling? This blog post from EconoSpeak first raised the issue in April of this year, and the argument advanced is more persuasive to me than wading into the legislative history of the 14th Amendment on what was previously an arcane, academic question (and yes, pun intended for Reconstruction-era Congressman Wade!). Slate.com also raised this point, as did David Frum's website (Frum has certainly become rather fascinating, hasn't he?). Again, abolishing the debt ceiling is fairly persuasive to my sensibility.
Finally, let's remember how the US Supreme Court, in 1983, suddenly found the "legislative veto" unconstitutional. We've learned to live without it, even though I wondered why the Court acted the way it did. I understood the heart-wrenching story of Mr. Chadha, who the INS decided not to deport after a full hearing, only to have Congress overrule the agency. The Court intervened to protect Mr. Chadha. But to do so, the Court thought it needed to declare the legislative veto null and void...Yet, after the decision, which affected over 250 laws where there had been a legislative veto included with those laws, the Constitution and our society survived...
If the debt ceiling is declared unconstitutional, we'll survive or not survive as a nation for reasons that have little if anything to do with the debt ceiling, which was enacted in the general hysteria of America's involvement in World War I. The question is how we govern ourselves and what policies we follow in the particular, not these doomsday mechanisms we (well, more often right-wingers) like to create, such as filibusters, gold standards, balanced budget amendments and the like.
Again, this is all a kabuki dance right now, and we'll see whether we get anywhere. After the dance is completed, or if there really is a crisis, we should simply declare the debt ceiling a relic to be tossed aside and repeal it once and for all.
ADDENDUM: My goodness, even The Economist, a reliable guide to defending the privileged economic elite, has noticed, during this debt ceiling "debate," that Republican politics has become a defining example of madness.