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House GOP disarray demands Biden be willing to use his 'least unconstitutional' debt ceiling card [1]
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Date: 2023-02-16
That doesn’t preclude it being included in any legislative package that might end up passing to solve this year’s impasse. This is as clean a long-term solution as you could find for the problem that McConnell created in the first place, when he decided that taking this hostage should be a regular project for the GOP.
At this point, however, a legislative fix for this year doesn’t seem likely. McCarthy simply doesn’t have the smarts or the power to get 218 in his conference behind doing it in any way that will be acceptable to a unified Democratic Senate and White House. He’s on a very short leash held by the Freedom Caucus, and they will accept nothing less than inflicted pain, and damn the consequences.
There is a very real possibility that the thing Biden will have to do is go it alone and take what Michael C. Dorf, law professor at Cornell Law School, calls the “least unconstitutional option.” That means taking Section Four of the 14th Amendment very literally, and using it:
“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.”
Shall is pretty strong language for the constitution, and the amendment, Dorf writes “obligates the government to pay all of its bills: interest on Treasury notes; money owed by law to Social Security recipients; bills from doctors and hospitals entitled to reimbursement for treating Medicare patients; salaries for air traffic controllers, members of the armed forces, and other government employees; etc. Failure to pay any of these obligations would violate the amendment.”
That’s one constitutional command butting up against the other constitutional command that Congress has the purse and controls it, not the president. If Congress fails to do its job in authorizing the government to keep paying off those obligations, it’s violating the 14th Amendment. It’s putting Biden in a constitutional conflict, as Dorf describes. “He cannot unilaterally impose taxes, cut spending, or borrow money, but he also cannot simultaneously comply with Congress’s mutually contradictory instructions to spend more than the sum of authorized borrowing and taxation.”
So the least unconstitutional action he can take is to bypass it, and order bonds be issued to cover the obligations. He can’t unilaterally cut spending in one program or raise taxes to cover the bills Congress created for him. That’s Congress’ constitutional job, which it would be failing in. “[I]f Biden were to direct the Treasury to issue new bonds, he would know exactly how much to borrow: the precise difference between revenues and obligations,” Dorf writes. “Bypassing the debt ceiling rather than selectively refusing to pay bills due would minimize the usurpation of legislative power.”
Would that constitute a constitutional crisis? Yes, one that Congress created by refusing to fulfill its obligation. So they could take Biden to court. Probably. Scholars are not entirely clear on whether they have standing do that. Even the Trump-packed Supreme Court likely would be loathe to rule against protecting the full faith and credit of the nation. Then we could get back to the McConnell plan whenever there’s a sane Congress to pass it.
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