Per Talking Points Memo (TPM):
While the federal government has been playing chicken with U.S. credit, liberal academics -- and even some Democratic members of Congress -- have begun questioning whether the legislative branch actually has the power under the Constitution to force the federal government to default on its debts.You can read the rest here. Go ahead Barry, make my day!
Their argument rests on a unique reading of the fourth section of the 14th Amendment, which seemingly forbids Congress from preventing the country from paying what it owes: "The validity of the public debt of the United States, authorized by law...shall not be questioned."
It's an interpretation that Sen. John Cornyn (R-TX) called "crazy talk," and that President Obama refused to comment on at a recent press conference.
But even if it's correct, and even though Republicans are holding the debt ceiling hostage to unpopular conservative legislative priorities, it's not a step the administration wants to take, or would be able to take lightly.
Conversations with experts indicate that the president would likely need one of the most powerful offices in the government to agree with this view before they could blow past the debt limit. And even if Obama got the go-ahead, the White House would have to be prepared for epic political and legal battles with the GOP, which would no doubt follow if Obama took such drastic action.
Sen. Chuck Schumer (D-NY) acknowledged that President Obama might be able to issue debt beyond the limit without Congressional approval in order to avoid defaulting, but warned against doing so without extensive study.
"It's probably not right to pursue at this point and you wouldn't want to go ahead and issue the debt and then have the courts reverse it," he said.
By Bradbury's reading, Obama would have a hard time justifying issuing new debt to pay old debt. Based on the text of the amendment, and an analysis of the legislative debate at the time the 14th Amendment was ratified, Bradbury concludes, "I believe that this provision of the Fourteenth Amendment means that the federal government may not cancel or fail to honor debt previously issued with the authorization of Congress (including valid, previously issued Treasury bonds).
Update: Here's some more background from Hot Air.