[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. ]
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WHY I CHANGED MY MIND ON THE DEBT LIMIT  
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Laurence H. Tribe
May 7, 2023
The New York Times
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_ 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. _

Senator Chuck Schumer, the majority leader, and other congressional
Democrats, criticizing Republicans for trying to block efforts to
raise the debt limit., Credit...J. Scott Applewhite/Associated Press

 

At this moment, at the White House as well as the Departments of
Treasury and Justice, officials are debating
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a legal theory that previous presidents and any number of legal
experts — including me
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out in 2011, when the Obama administration confronted a default.

The theory builds on Section 4 of the 14th Amendment
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to argue that Congress, without realizing it, set itself on a path
that would violate the Constitution when, in 1917, it capped the size
of the federal debt. Over the years, Congress has raised the debt
ceiling scores of times, most recently two years ago, when it set the
cap at $31.4 trillion. We hit that amount on Jan. 19 and are being
told that the “extraordinary measures” Treasury has available to
get around it are about to run out
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When that happens, all hell will break loose.

Taking advantage of that prospect, congressional Republicans are
threatening to do nothing unless
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the administration agrees to slash lots of government programs that
their party has had in its sights. If the president caves in to their
demands, they will agree to raise the cap — until this crisis occurs
again. Then, they will surely pursue the same game of chicken or,
maybe more accurately, Russian roulette. It’s a complicated
situation, but a solution is staring us in the face.

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?

I still worry about those questions. But I’ve come to believe that
they are the wrong ones for us to be asking. While teaching
constitutional law, I often explored the problem of bloated
presidential power, the puzzle of preserving the rule of law in the
face of unprecedented pressures, and the paradox of having to choose
among a set of indisputably bad options. During my last semester
teaching, with Covid forcing my seminars from the classroom to the
video screen, I studied the most insightful literature
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debt ceiling and concluded that we need to reframe the argument.

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
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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.

And there is only one person with the power to give Congress that
answer: the president of the United States. As a practical matter,
what that means is this: Mr. Biden must tell Congress in no uncertain
terms — and as soon as possible, before it’s too late to avert a
financial crisis — that the United States will pay all its bills as
they come due, even if the Treasury Department must borrow more than
Congress has said it can.

 
The president should remind Congress and the nation, “I’m bound by
my oath
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to preserve and protect the Constitution to prevent the country from
defaulting on its debts for the first time in our entire history.”
Above all, the president should say with clarity, “My duty
faithfully to execute the laws extends to _all_ the spending laws
Congress has enacted, laws that bind whoever sits in this office —
laws that Congress enacted without worrying about the statute capping
the amount we can borrow.”

By taking that position, the president would not be usurping
Congress’s lawmaking power or its power of the purse. Nor would he
be usurping the Supreme Court’s power to “say what the law is,”
as Chief Justice John Marshall once put it. Mr. Biden would simply be
doing his duty to
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“take care that the laws be faithfully executed” even if doing so
leaves one law — the borrowing limit first enacted in 1917 —
temporarily on the cutting room floor.

Ignoring one law in order to uphold every other has compelling
historical precedent. It’s precisely what Abraham Lincoln did when
he briefly overrode
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the habeas corpus law in 1861 to save the Union, later saying to
Congress
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“Are all the laws, but one, to go unexecuted, and the government
itself go to pieces, lest that one be violated?”

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.

Of course, my solution might roil the bond markets and cause lenders
to demand a premium for extending credit to the United States. But no
path out of the dilemma is without risk.

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 [[link removed]] that
prevented him from vetoing line items within a budget.

In any event, Section 4 prohibits the president from permanently
stiffing our creditors — even those required to wait their turn
after the Treasury runs dry. So even if Speaker Kevin McCarthy and
those pulling his strings succeed in making some of those creditors
wait, it wouldn’t eliminate our debts; it would merely replace them
with i.o.u.s. And that’s just debt in another form.

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.

==

Laurence H. Tribe (@tribelaw [[link removed]]) is a
university professor emeritus at Harvard and an author, most recently,
of “To End a Presidency: The Power of Impeachment.”

 

* US Debt Ceiling; 14th Amendment
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* Section 4;
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