Biden Should Invoke 14th Amendment Now to Prevent Default
US should file Original Action in Supreme Court and seek decision before we hit the debt ceiling
The fight over the debt ceiling will not be resolved by a compromise on the budget. The Republican demands that hard fought climate programs be eliminated, that counterproductive work requirements be imposed on a wide number of federal benefits, and the demand to cut 4 trillion over ten years are all non-starters for the Biden Administration and Democrats in general. The positions will not soften as McCarthy is driven by his radical right wing Freedom Caucus members who will withdraw their support for McCarthy as Speaker if he attempts to negotiate reasonable compromises.
Biden has to go through the motions to seek a compromise, but the dynamics and leadership positions in the House will prevent any compromise acceptable to Biden and Democrats. McCarthy can be subjected to removal if just one House member seeks a vote on removal of the Speaker. So the far-right elements of the Freedom Caucus will prevent any acceptable compromise.
As I wrote in my Substack Newslettet on the 14th Amendment, Clause 4, the provision saying the public debt cannot be questioned, can be the basis of original litigation in the Supreme Court together with the obligation and duty of the President to see that all the laws are faithfully executed. That Constitutional duty of the President requires that Biden direct the Treasury Secretary to keep issuing new debt or refinancing old debt that is necessary ro fund all the myriad programs that Congress has both legislatively adopted and passed appropriation bills to fund them.
Professor Laurence Tribe recently wrote an Op Ed in the New York Times changing his prior position that the 14rh Amendment cannot by itself do all the heavy lifting to get us out of the debt ceiling crisis, and he now believes that the President’s Constitutional obligation to see that all Congressionally adopted laws and programs be faithfully executed when combined with Clause 4 of the 14th Amendment means that the President can declare the debt ceiling statute, which is only another statute adopted by Congress, unconstitutional and cannot restrain Treasury from performing its tasks to issue debt instruments to fund all legislatively adopted programs.
Picking and choosing laws to faithfully execute has no constitutional support, and the cases preventing line item vetoes by the President also means that the President cannot decide that certain legislatively adopted programs will be funded while others will not. There is no support in the Constitution for the pick and choose strategy.
If Biden issues his declaration now, he can file an original action against States that want enforcement of the debt ceiling, and he could seek an expedited Supreme Court decision whether his continuing to fund legislatively adopted programs even if the combined debt would exceed the statutory debt limit is a proper exercise of his duty and obligation to have all laws faithfully executed as Congress intended by their appropriations for all the programs and activities.
Though some of us might doubt that the Supreme Court would not support the President’s actions in continuing to fund all programs by new debt if necessary, the Justices would have to think what such a negative decision would do. It would immediately cause credit to freeze up, uncertainty about the US honoring its debt obligations would roil the world economies as many nations hold US debt, and the uncertainty of payment of that debt would cause a financial crisis. So the Justices would have to recognize the extreme negative effects of such a decision. I submit, though I am not fond of the current Court, I believe that when faced with the tremendous negative consequences of the wrong decision, a majority and maybe a unanimous Court would affirm the President’s action in ordering Treasury to issue debt necessary to fund all Congressionally authorized programs and Congressional,appropriations to fund them.
That would be a logical result for the Court in not causing world wide turmoil. So Biden should have fairly high confidence that the Court would affirm his action. So the time is now for Biden to make the Declaration and start the litigation so that the Court can reach the the right decision before we actually go over the debt ceiling.
Surely the answer for this conundrum is for somebody - I guess the SC - to declare that these debts must be paid, but to suggest or declare that in making sense of the overpay that the amount over should be deducted from the next year's budget to even out the costs ? That's the only thing that makes sense to me if the overpay really is a problem which many argue it is not anyway !! In the end they cannot decide to NOT pay this bill anyway since it's been caused already !