This article is part of TPM Cafe, TPM’s home for opinion and news analysis. Versions of this article appeared at the Balkinization blog and at the Roosevelt Institute blog.
helping President Biden is not in my interest
Josh Hawley’s interest is to make the President fail?
That sure isn’t patriotism.
Can McCarthy pass a law directly contradicting another law and blame the President for not following both?
Clearly, the members of the House would be in violation. Not Biden.
Long, thorough article. Normally I’d have some clever remark or snarky point to pick on, but instead I’m just gonna recommend folks take the time to read it. All of it. You don’t have to do it all at once. I didn’t.
This is a great summary. Biden has no excuses for taking a bad deal from McCarthy when he has these options.
I’d take it one step further—if the Supreme Court stands in the way, Biden should order his government to ignore them. We are approaching the time for Supreme Court nullification. If not on the debt ceiling, then on the issue of abortion drugs. The court is out of control and should be limited to ruling on law, not science or economics, where they are unqualified to opine.
Finally, a good article on the X-Date. First published article I’ve seen emphasizing that all statutory spending has been Congressionally mandated (the Executive spends on behalf of Congress). Also the first intelligent analysis I’ve seen of the Executive’s options.
Thank you for this, Joseph Fishkin
This should be required reading for anyone involved in making decisions or even commenting on x-date. Thank you, Joseph Fishkin.
Lawrence Tribe addressed this issue last week in an editorial in either the Post or the Times. There is technically no real need to invoke the 14th amendment; just weigh one law against the many others and enforce the most responsible thing.
If the Rs don’t like it, they can sue.
They can try, but standing is in question. Also, the cloud of its legitimacy hanging over debt issued in that scenario would raise – potentially by a lot – our cost to service the debt.
That was one of the things I appreciate about this article. The author includes that point appropriately, neither under- nor over-weighting it
Good article, but I do want to address this part:
The underlying reason the House Republicans believe this is because they want to build a constitutional political economy with a weakened federal government, hamstrung by restrictions that make it operate more like a business with a balance sheet and less like a democratic sovereign through which the people and their representatives can steer the nation’s economic development.
That might have been the motivation under the John Boehner House GOP, but it isn’t under the Kevin McCarthy House GOP. Their motivation is much simpler: Hurt Biden to help Trump.
Let’s not ascribe higher motivations to a group when we have little to no evidence that they hold them.
The article is really well written and thorough, but I disagree with its conclusion that Biden is hamstrung by the requirement (in Article 1, Section 3) that he “take care that the laws be faithfully executed.” Article 1, Section 1 includes the following:
Before he enter on the execution of his office, he shall take the following oath or affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
Granted, I’m not a law professor, but it appears to me that his first order is “protect and the defend the Constitution,” which happens to include the admonition in the 14th Amendment that
The validity of the public debt of the United States, authorized by law, . . . shall not be questioned
The United States debt – the total of all of the deficits – was “authorized by law.” The Article 1 requirement to “faithfully execute” the laws includes the public debt, and consistently with the President’s oath to the Constitution, he must defend that debt.
Frankly, I don’t see any other way to deal with this. I understand that in 2011, DOJ’s Office of Legal Counsel concluded that because the 14th Amendment was intended to deal with the aftermath of the Civil War, its meaning today is not what it was then. Tell that to the Second Amendment supporters. Anyway, who cares what OLC said when Obama was confronted with this. Biden took an oath, and fulfilling it is his most logical and defensible path forward.
We’ll see how the standing rules are applied when the Supremes deal with the 5th Circuit’s mifepristone case.
I mean that one’s absurd, but it’s also completely different. The remedy for a Congress that doesn’t like the way federal dollars are being allocated is to change laws. What harm to Congress is a forced default even supposed to remedy? Regardless, the likely cost to issue debt under a cloud of potential illegitimacy is enough of a reason to look for other ways forward
I see the fundamental political problem rests on the fact that people must be “mauled by the lion” to take it seriously. As it stands, it is just an esoteric set of words and political name calling.
Even if we get past this crisis, using the “Debt-Ceiling” will come up again and again, until this consequence is released on all of us.
I hate suggesting this, but I have to wonder if it is better just to do it now.
“Are all the laws to go unexecuted, but one, and the Government itself go to pieces, lest that one be violated?”
Will Biden default? Continue to pay? Invoke the 14th and continue to pay? Or strike a deal with congress to cut spending previously authorized by congress?
Does Biden have the will to merely continue to pay?
Obama didn’t and the US credit rating was lowered, our economy suffered and our standing in the world was diminished.
Yup…the crux of the issue is that the House Republicans only do Trump’s bidding.
I actually think he knows this.
He’s been saying that the discussions are re: the budget, not debt ceiling.
To me, that reads like Joe knows he has to appear like he’s negotiating like a responsible presiden, but likely told Kevin that anything agreed to, will still not be part of the debt limit increase, but instead a gentleman’s agreement on budget terms so they both get to keep their respective promises. Kevin’s to his caucus to get something for the hostage, and Joe’s to the American people to sign only a clean increase.
Joe still has the upper hand as, one, still has 14th amendment in his pocket as well as the other items mentioned in this article, and two, Schumer can simply not pass shit Joe agreed to in the separate budget bill.
Even with agreements in place, Kevin will need Dems for the clean limit increase, thus still losing his Gavel.
Time to play hard ball.
I noticed that sentence too. I’m struggling with it, although I completely agree about ascribing high motivations to Republicans.
I don’t believe they want a weak federal government. They say they do. They also say they really, really want to cut my taxes, but they haven’t. They say they want states to make their own abortion laws, but every federal candidate is just itching to declare a national edict.
As for government operating like a business, I suspect that may be true with House political novices. We’ve seen, under Trump, that a business person worth their salt can’t comprehend government operation, and government operated as a business can’t work. They’re different institutions requiring different skills.
(See: Jared’s bought all masks so federal warehouses are stocked now go find some for yourself.)
I hope you’re right. Is there some kind of PR advantage of waiting until the last second before springing the solution, however? Isn’t the US already suffering loss of confidence here and abroad over the uncertainty?