Saturday morning on MSNBC’s “Melissa Harris-Perry,” Harris-Perry discussed possible strategies for President Barack Obama to deal with an obdurate Republican Congress and carry on the business of governing while being obstructed at every turn.
She began the segment by saying, “I’m gonna take you back, way back. 1861. During the height of the Civil War, President Abraham Lincoln made an unprecedented move, which many, even then, considered an overreach of executive authority.”
That year, Lincoln declared martial law and suspended the Constitutional writ of habeas corpus in order, he hoped, to preserve the United States by putting down the rebellion in the southern states. He defended his actions in a July 4 speech, in which he said, “Are all the laws but one to go unexecuted and the government itself go to pieces lest that one be violated?”
Lincoln argued that the executive office had the power to suspend habeas corpus without Congress, and even if it didn’t, such a measure was necessary, and was his Constitutional duty, in order to keep the union together.
“That perhaps convoluted argument,” Harris-Perry said, “is actually a strong claim to presidential authority in the United States Constitution. Perhaps above all else, the presidential duty is to keep the government from going to pieces.”
To do so, she said, sometimes a president may have to choose “the least troubling option from a menu of unconstitutional choices. This may be the situation that President Obama finds himself in with regards to upcoming standoffs with Congress.
“From replacing outgoing cabinet members to the ability to issue new debt, the relationship between the Oval Office and Capitol Hill has already proven intractable. How, then, can he keep the government from going to pieces?” she asked.
In the Columbia Law Review, George Washington University Law’s Neil Buchanan and Cornell University Law School’s Stephen Dorf wrote, “In the debt ceiling deal conflict, given the balance of constitutional, practical and prudential considerations, the least unconstitutional choice would be for the president to continue to issue debt, in the amounts authorized by the duly enacted budget of the United States.”
What that would translate into would be for Obama to “go over the heads of Congress and raise the debt ceiling from the Oval Office.” And while the separation of powers is a grand and noble thing, it has what Harris-Perry called “street-level consequences.”
And while it could be argued that this kind of executive action is unconstitutional, it could equally be argued under the provisions of the 14th Amendment that the debt ceiling itself in unconstitutional, in that the Congress is trying to go back on debt that it has already agreed to pay.
The president may be obligated, she suggested, to ignore the Congress under his constitutional duty to preserve the orderly workings of the government. Is it therefore necessary that the U.S. Constitution must be violated in order to better serve it?
Ultimately, Harris-Perry said, the question is, “When you’re facing a Congress that refuses to act on its power, how does the president keep the government from going to pieces?”
Watch the clip, embedded via MSNBC, below: