The Fourteenth Amendment to the U.S. Constitution states that '[t]he validity of the public debt of the United States, authorized by law ... shall not be questioned." I recently read something on-line suggesting that President Obama interpret this clause, when the crunch hits, as giving him the power to avoid a default by authorizing debt issuance in excess of the statutory ceiling. And I suppose he could throw in national security powers amid the threat of a national disaster as an extra justification for acting.
If I were in the White House and wearing a political rather than a legal hat, I would definitely recommend that this be done at the right time - not too far in advance, which would be a political disaster, but just at the crunch point, when it could be described as vital for U.S. national security, etcetera. This might then get all the pundits salivating about bold and decisive leadership. And after everything else we have seen from the Executive Branch in the last decade, or maybe I should say the last 50 to 60 years (the brief early 1970s retrenchment aside), it would hardly be discordant with the fundamentals of how our government now operates. After all, if the president can wage an undeclared war in Libya without Congressional authorization, as everyone seems to think he can, then, although these are separate legal questions, it's hardly an unprecedented power grab.
Would the action be constitutionally correct? I am admittedly skeptical. But the above clause was apparently adopted in anticipation of the concern that members of Congress from the ex-Confederate states would seek to compel default on U.S. public debt, or at least Civil War veterans' pensions (expressly mentioned in text from the clause that I skipped). So we are back in a recognizable scenario of concern that Congress will deliberately default, although to be sure the amendment doesn't mention delegating powers to the President to avoid questioning of the debt.
Constitutionally correct or not - and in the context of a potentially disastrous global and national economic crisis I think there is a colorable claim here - I can't see that anyone would have standing to contest it. The House, which presumably would not be joined by the Senate, seems unlikely to have standing or to be able to avoid "political question" problems, although with 5 hardcore Republicans on the Supreme Court who knows. But even if the House could get an injunction, Boehner et al would have to think twice about seeking to enjoin debt issuance and thereby directly triggering not just a global economic catastrophe but (as the White House could spin it) non-payment of our troops and needy seniors.
While there could subsequently be a legal issue concerning the enforceability of the debt issued at the President's say-so in excess of the statutory ceiling, one would probably expect that by then the debt would have been retrospectively validated.
If I were President Obama, I would not use the threat of doing this as leverage in the debt negotiations. Rather, I would spring it as a surprise at the last moment, in effect after baiting the trap. Dramatic 9 pm EST speech from the Oval Office with all the trimmings. Mention not just default and its consequences but the need to pay our troops, keep Social Security and Medicare operating, etcetera. Make the issue one of whether our troops and seniors should be paid or not.
Again, I am speaking here to what I would recommend as a political advisor. As a legal advisor, if asked to opine on what is the best view of the law, not what's the most that one could get away with, I would have a much harder time recommending this. But how many political actors in Washington do business this way any more? Even Supreme Court Justices all too often clearly don't. It's hard to play by different rules than everyone else without seriously handicapping yourself. And also I think a voluntary U.S. debt default is potentially a true global calamity. Being a bit tricky with one's legal interpretations in a true ticking time bomb scenario is a lot more justifiable than doing so just for political gain.