Representative Jerry Nadler thinks there’s a “high likelihood” of a complete breakdown in negotiations between House Republicans and the president over the debt ceiling, and he thinks the Democrats’ best option at this point is to push the president to solve the problem unilaterally, since Speaker John Boehner is still trying to rustle the votes for a debt ceiling deal that the president and Senate have already declared a non-starter.
“I really think there’s a very high likelihood of a total impasse here, which would be catastrophic,” Nadler told me this morning. “And so we have to push the 14th Amendment, and make room for the 14th Amendment.”
Some Democrats have argued that the 14th Amendment gives the president the authority to raise the debt ceiling without Congressional approval, but Obama has so far ruled it out as an option, even after his attempt to forge a “grand bargain ” was rejected by Boehner.
House Republicans are set to vote on Boehner’s proposal this afternoon, with Senate Democrats waiting to see how the House votes before they advance a more modest package of cuts designed by Majority Leader Harry Reid.
He characterized the mood in this morning’s Democratic caucus meeting as “very upset, very angry and very frustrated.”
“Nancy [Pelosi] got up and said, nothing new,” he recalled. “That was the extent of her comments on this. Except she said the Exxon earning reports are out: huge profits.”
Nadler said the in-fighting in the Republican caucus was not good news for Democrats, or anyone, really.
“If [Republicans] can’t get this bill passed, I don’t know how you talk to them, because this bill is 20 degrees beyond terrible,” Nadler said. “If they get this bill passed, then the question is: Can they deliver their caucus for some deal that’s better than this but worse than Reid? If they can’t, then there can be no deal.
“And that’s why a lot of us are saying the president – once he’s gone to the last resort, and I think we’re at that stage – the president should use the 14th Amendment option.”
The 14th Amendment states, in Section 4: “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” Whether that provision gives president executive authority to raise the debt ceiling, without requiring the approval of Congress, remains an open question.
Nadler said he contacted the Justice Department before Memorial Day, suggesting this approach, and sent them a 1997 Tulsa Law Review article that asserted its legality.
But would sending the problem to the courts calm the jittery financial markets?
“I think it would,” Nadler said. “I think the president, if he asserted that authority and spent the money, and said he’s paying the debts, that would calm the markets. Let someone try to go to court, it would take years.”
From a bargaining perspective, Nadler said the administration had been right, so far, not to push the 14th Amendment, which could distract from forging a deal, and risk raising the ire of Republicans who would accuse the president of circumventing congressional authority.
“They want to avoid that,” he said. “And they should avoid that. Until they can’t.”
Nadler has carved out a role for himself as a voice of the minority caucus’ liberal conscience, pushing the president to stake out a harder line in negotiating against Republicans.
“The president has totally allowed the Republicans to miscast the entire debate,” Nadler lamented this morning, saying the country isn’t broke and Congress shouldn’t be cutting in the midst of a bad economy. “We’re playing the entire game within our 20 yard line, because we conceded everything rhetorically.”
As to whether he could support a compromise between the Boehner and Reid plans — should one somehow emerge — Nadler said: “I don’t know if I can vote for the Reid Plan.”