Paying What We Owe

 

...the 14th Amendment makes clear that this power does not include the power to trigger a default. As constitutional scholar Laurence H. Tribe succinctly tweeted, “The debt ceiling is a misnomer: it does nothing to cap spending but just creates an illusory threat to stiff our creditors.” That’s because Section 4 of 14th Amendment forbids defaulting on the nation’s debts.”

In other words, the Constitution compels the government to honor its debts. The administration shouldn’t need congressional action to do that.

Opinion
How the Biden administration can slow the GOP’s dangerous schemes

The rules package that House Republicans passed Monday night provides an indication of just how much damage House Speaker Kevin McCarthy (R-Calif.) has wrought in capitulating to the most extreme members of his caucus. The good news is that the Biden administration can thwart McCarthy’s schemes.

For starters, the House GOP is spoiling for a fight on the debt limit. The rules package eliminates a long-existing parliamentary rule that automatically raised the debt ceiling whenever the House passed a budget. This will empower the House to hold the economy hostage to extract dangerous cuts to national security and crippling reductions in entitlements.

But the White House can defuse the extortionists’ bomb before it is detonated. It should plainly state that the president has the power to ensure Congress does not sabotage the full faith and credit of the United States.

Section 8 of Article I of the Constitution states that Congress has the power “to lay and collect taxes, duties, imposts and excises, to pay the debts.” It further states that Congress has the power to borrow “on the credit” of the United States. Plainly, the Founding Fathers did not envision lawmakers deliberately refusing payment of debts and destroying the credit of the United States.

But the 14th Amendment makes clear that this power does not include the power to trigger a default. As constitutional scholar Laurence H. Tribe succinctly tweeted, “The debt ceiling is a misnomer: it does nothing to cap spending but just creates an illusory threat to stiff our creditors.” That’s because “[Section] 4 of 14th Amendment forbids defaulting on the nation’s debts.”

In other words, the Constitution compels the government to honor its debts. The administration shouldn’t need congressional action to do that.

Neil H. Buchanan, an economist and legal scholar at the University of Florida, explains Tribe’s view in a 2021 Justia article:

Professor Tribe had originally expressed some skepticism about this Fourteenth Amendment-based argument when it first arose during the Republicans’ debt ceiling gambits in the Obama years. He now agrees that the relevant constitutional provision — “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.” — requires the President to borrow to prevent a default that would most assuredly bring the validity of the public debt into question. …

 

President Biden would be affirming congressional spending power, not defying it, because he would be doing exactly what Congress told him to do when it passed appropriations laws. Those laws tell a president exactly how much to spend, when, and to whom the money must be paid.

Buchanan explains that a president facing the “trilemma” of not being able to honor spending, taxing and debt ceiling laws simultaneously must “choose to spend and tax as Congress has ordered, with the debt ceiling losing the constitutional standoff.” As a 2021 tweet of Tribe’s puts it, this is “the lesser of two constitutional evils.”

The Biden administration should request a formal legal opinion from the Office of Legal Counsel, the office responsible for constitutional advice to the administration. If the OLC agrees that the president can act on his own, the White House could clarify that its preference is to work with Congress to raise the debt ceiling, but explicitly retain the constitutional prerogative to act unilaterally. In short, the White House should seize the initiative to disarm Congress now, before a loaded gun is put to the nation’s head.

The GOP rules package also sets up a blatant violation of separation of powers that would undermine the fair and impartial administration of justice. It would do this by establishing a subcommittee on the “weaponization of the federal government,” which would be authorized to review ongoing criminal investigations.

Former federal prosecutor Joyce Vance explains in a Substack post, this would “go far beyond the legitimate scope of oversight. Reviewing criminal cases while they’re in progress, which DOJ won’t permit (although it will be forced to waste a lot of time and resources fending off the committee’s requests), would overstep Congress’s bounds and violate the separation of powers.”

It’s no secret what the Republicans are up to. Vance writes: “This is little more than a mechanism for House Republicans to try to interfere with any investigations into Trump, or any other Republicans, like George Santos or Matt Gaetz, who may be the subject of non-January-6-related matters.” She adds that Rep. Jim Jordan (R-Ohio), who will likely lead the subcommittee, “will be able to issue subpoenas regarding the Hunter Biden investigation, which is being handled by a Trump-holdover U.S. Attorney in Delaware to try to embarrass President Joe Biden and argue that his Justice Department is giving favorable treatment to his son, which it clearly isn’t doing.”

The Justice Department has a well-established practice to prevent Congress from meddling in ongoing investigations and prosecutions. As the Justice Department explained in a letter to a congressional subcommittee in 2000, “Although Congress has a clearly legitimate interest in determining how the Department enforces statutes, Congressional inquiries during the pendency of a matter pose an inherent threat to the integrity of the Department’s law enforcement and litigation functions.” The letter continued, “Such inquiries inescapably create the risk that the public and the courts will perceive undue political and Congressional influence over law enforcement and litigation decisions. Such inquiries also often seek records and other information that our responsibilities for these matters preclude us from disclosing.”

Attorney General Merrick Garland should respond similarly to any MAGA overreach. He should make clear that proper oversight is the bread and butter of congressional power and that it is entirely proper for Congress to probe, for example, the FBI’s failure to adequately prepare for the Jan. 6 attack or its failure to collect data about domestic terrorism, as required by law. But he will not permit Congress to unconstitutionally impede ongoing investigations and prosecutions.

In sum, the administration can proactively short-circuit the proposed House rules. In doing so, it would reassure the markets and the American people. Biden should not miss this opportunity to make clear that McCarthy’s rules are the result of MAGA Republicans’ extortion and are as worthless as his speakership.