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Tribe: use the 14th Amendment on the Debt Limit, Hartmann Flashback: it's really the Two Santas [1]
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Date: 2023-05-08
Follow the money. There's a con game going on here and it's past time to stop getting played for suckers by the GOP.
Laurence H. Tribe has an Op Ed in The NY Times:
Tribe is one of those Very Serious People who are in and out of government all the time. He’s on the short list for matters in his area of expertise. He’s been around the GOP debt hostage strategy before, and he’s learned from it.
..Section 4 of the 14th Amendment says the “validity” of the public debt “shall not be questioned” — ever. Proponents of the unconstitutionality argument say that when Congress enacted the debt limit, effectively forcing the United States to stop borrowing to honor its debts when that limit was reached, it built a violation of that constitutional command into our fiscal structure, and that as a result, that limit and all that followed are invalid. I’ve never agreed with that argument. It raises thorny questions about the appropriate way to interpret the text: Does Section 4, read properly, prohibit anything beyond putting the federal government into default? If so, which actions does it forbid? And, most important, could this interpretation open the door for dangerous presidential overreach, if Section 4 empowers the president single-handedly to declare laws he dislikes unconstitutional?
Tribe argues that we are asking the wrong questions about whether or not the President can use the 14th Amendment in this way.
The question isn’t whether the president can tear up the debt limit statute to ensure that the Treasury Department can continue paying bills submitted by veterans’ hospitals or military contractors or even pension funds that purchased government bonds. The question isn’t whether the president can in effect become a one-person Supreme Court, striking down laws passed by Congress. The right question is whether Congress — after passing the spending bills that created these debts in the first place — can invoke an arbitrary dollar limit to force the president and his administration to do its bidding. There is only one right answer to that question, and it is no .
emphasis added
Tribe has been going over the various arguments, legal precedents, and the like to reach this conclusion. To cut to the chase, he argues the 1917 law creating a debt ceiling is outweighed by a vast body of other law, all the way back to the Constitution. He cites historical precedent:
Ignoring one law in order to uphold every other has compelling historical precedent. It’s precisely what Abraham Lincoln did when he briefly overrode the habeas corpus law in 1861 to save the Union, later saying to Congress, “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?”
It’s not a coincidence that an amendment passed in the wake of the Civil War has become so important today, not in light of January 6 and associated shenanigans that are still continuing on the part of the authoritarian personality cult masquerading as a legitimate political party. Tribe asserts:
Some will say that letting the president ignore the statutory limit on borrowing would give him too much power and represent a dangerous step in a tyrannical direction. Wrong. What I propose would in truth give the president a lot less power than entrusting him to decide which of the government’s promises to honor and which creditors to stiff — a power that the Supreme Court denied him when it handed down a 1998 decision that prevented him from vetoing line items within a budget.
As he notes:
..For a president to pick the lesser of two evils when no other option exists is the essence of constitutional leadership, not the action of a tyrant. And there is no doubt that ignoring the debt ceiling until Congress either raises or abolishes it is a lesser evil than leaving those with lawful claims against the Treasury out in the cold. ...All Congress would have done is create economic catastrophe on top of constitutional crisis — and without securing compliance with the debt ceiling that Republican claim to want. The only way out of this forest is through the trees.
emphasis added
To repeat what Tribe argued on this:
The right question is whether Congress — after passing the spending bills that created these debts in the first place — can invoke an arbitrary dollar limit to force the president and his administration to do its bidding. There is only one right answer to that question, and it is no .
But wait — that’s not the whole story. Ever hear of the Two Santas?
Tribe is a respected authority on the Constitution and the rule of law. What he and too many Very Serious People overlook (by habit) is that Republicans don’t give a damn about the rule of law or the Constitution when it gets in their way. (Why do you think the Federalist Society has worked so hard to subvert the judiciary and turn it into a partisan weapon?) They’ve been playing a con game on the country for decades now. Thom Hartmann explained it long ago — but it seems to have gone down the Memory Hole.
This is just the latest round of the “Two Santas” strategy. Republicans spend without care when they are in charge, blow up the debt, and cut taxes — then demand Democrats clean up the mess they made.
As Thom Hartmann put it, ever since Herbert Hoover...
..the Republican mantra was: "Lower taxes, reduce the size of government, and balance the budget." The only problem with this ideology from the Hooverite perspective was that the Democrats always seemed like the bestowers of gifts, while the Republicans were seen by the American people as the stingy Scrooges, bent on making the lives of working people harder all the while making richer the very richest. This, Republican strategists since 1930 knew, was no way to win elections.
There’s no ‘seem’ about it. It’s what Republicans do.
Remember supply side “Voodoo Economics”? It’s the (disproven) theory that cutting taxes will stimulate the economy enough to compensate for lost tax revenue at lower rates because the economy will grow enough to make up the difference.
The Democratic Santa, caring for others. But [Jude] Wanniski had been doing his homework on how to sell supply-side economics. In 1976, he rolled out to the hard-right insiders in the Republican Party his "Two Santa Clauses" theory, which would enable the Republicans to take power in America for the next thirty years. The Republican Santa — who doesn’t have a heart than can grow. Democrats, he said, had been able to be "Santa Clauses" by giving people things from the largesse of the federal government. Republicans could do that, too - spending could actually increase. Plus, Republicans could be double Santa Clauses by cutting people's taxes! For working people it would only be a small token - a few hundred dollars a year on average - but would be heavily marketed. And for the rich it would amount to hundreds of billions of dollars in tax cuts. The rich, in turn, would use that money to import or build more stuff to market, thus increasing supply and stimulating the economy. And that growth in the economy would mean that the people still paying taxes would pay more because they were earning more. There was no way, Wanniski said, that the Democrats could ever win again. They'd have to be anti-Santas by raising taxes, or anti-Santas by cutting spending. Either one would lose them elections.
emphasis added
If you’re wondering why Cheney said “Deficits don’t matter” and why Republicans only care about the debt when Democrats are in charge, now you know why. How well has it worked?
The Republicans got what they wanted from Wanniski's work. They held power for thirty years, made themselves trillions of dollars, cut organized labor's representation in the workplace from around 25 percent when Reagan came into office to around 8 of the non-governmental workforce today, and left such a massive deficit that some misguided "conservative" Democrats are again clamoring to shoot Santa with working-class tax hikes and entitlement program cuts.
Hartmann wrote this in 2009 ; Republicans are still playing this game. There are still Democrats falling for it and the media plays right along with Republican ‘concerns’ about the debt. This along with Neoliberalism has had the Democratic Party chasing its own tail for decades.
Are things finally turning around? Biden’s Inflation Reduction Act and Obama’s Affordable Care Act are long-overdue correctives; they are about using the power of government to make the country stronger and improve the lives of everyone. The Climate Crisis (and others) cannot be addressed without a strong, progressive government in the hands of people who believe in solving problems with it.
Republicans see government as a tool to loot the country, making their rich masters richer at the expense of everyone else, and protecting their privilege. It’s like the way an extraction industry deals with a mineral deposit: extract all the value at minimum expense for the benefit of a few, move on, and leave a hole in the ground and a mess for others to deal with. (Which also describes the operations of Wall Street Bankers, Hedge Funds, and Private Equity.)
Let’s hope Tribe’s narrative takes hold in Democratic circles to strengthen their resolve and in the media to inform their reporting — but let’s not forget about the Two Santas either. If Biden defuses the Debt Limit bomb, rest assured the GOP will still try to play the evil Santa game by other means. They always do. Democrats really need to message on this, hard enough to break through the media’s preferred narrative that both sides are negotiating in good faith. The GOP is giving them plenty of material to work with — if only they will use it.
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