Laurence Tribe nails it on the debt ceiling. It has always been unconstitutional

[applegrove]

Last edited Tue May 9, 2023, 03:20 AM - Edit history (1)

Laurence Tribe nails it on the debt ceiling. It has always been unconstitutional

by sharecare
Community (This content is not subject to review by Daily Kos staff prior to publication.)
Monday, May 08, 2023 at 2:14:40p EDT

https://m.dailykos.com/stories/2023/5/8/2168178/-Lawrence-Tribe-nails-it-on-the-debt-ceiling-It-has-always-been-unconstitutional

"SNIP........

So Lawrence Tribe has made a fascinating argument against the debt ceiling that is pretty spot on, and I think gives Biden the authority to act unilaterally to prevent catastrophe. The argument was put forth in the New York Times so it is behind a paywall but if you have access check it out. For me The quote below sums up the key elements of the argument.

* 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.

* The Debt ceiling has always been unconstitutional; its a usurpation of Presidential power.Congress cannot simultaneously authorize spending but then cause default if the Exec branch spends authorized dollars.

.........SNIP"

And this:

"SNIP........

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?”

.........SNIP"

https://www.nytimes.com/2023/05/07/opinion/debt-limit.html

[Bluethroughu]

1. It's been all like all the other noise that comes from the GOP.

The GOP wants default so their donors can scoop up the country for pennies on the dollar, and have a serf population to exploit the resources for their monetary benefit.

It has always been a Neo-Confederate economic plan with the help of a foreign adversary or two. Pooty and Suadis.

It is treason.

[Rhiannon12866]

2. Here's the video of Laurence Tribe on with Lawrence O'Donnell, for those who missed it:

Laurence Tribe: President's 'duty' is to pay debts despite GOP giving him an 'impossible choice - The Last Word - MSNBC
https://www.democraticunderground.com/1017826895

MSNBC’s Lawrence O’Donnell is joined by Harvard Law Professor Laurence Tribe who explains what the president’s constitutional duties are despite the demands from House Republicans on the debt ceiling. - Aired on 05/08/2023.

[Cha]

12. Thank you..

[FBaggins]

3. Tribe is incorrect - and he very likely knows it

His goal is probably just to give the president additional negotiating power

The Debt ceiling has always been unconstitutional; its a usurpation of Presidential power.Congress cannot simultaneously authorize spending but then cause default if the Exec branch spends authorized dollars.

There are at least three problems with this theory

1 - Congress didn't just "usurp presidential power" (if such existed). The congressional and executive branch passed that law. If it's unconstitutional, then the judicial branch is the one to say so... not a future president. Biden would have to take Congress to court to make this argument... he can't unilaterally undo it.

2 - It doesn't actually exist (that presidential power) to "usurp". The president doesn't have the inherent power to issue debt. He was delegated that power by Congress. Ironically (and unfortunately for Tribe's argument), that delegation took place in the very same legislation (the 1917 Second Liberty Bond Act) that created the debt limit in the first place. Which means...

3 - If that law was unconstitutional - then the debt ceiling would go away... but so would the executive branch's ability to issue any debt at all without explicit congressional approval.

[Silent3]

4. Biden absolutely can ignore the debt ceiling...

...and leave it to Congress to take him to court. It doesn't have to be the other way around.

And I love that filing such a lawsuit would be a matter of Congress petulantly insisting that the court must plunge the country into economic chaos to be on the correct side of the law.

This is definitely a dire situation where the best thing is to save the economy first and let the courts sort it out later, rather than cave to a hostage-taking tactics of nihilistic Republicans, giddy about forcing a crisis one way or another.

3 - If that law was unconstitutional - then the debt ceiling would go away... but so would the executive branch's ability to issue any debt at all without explicit congressional approval.

Laws are sometimes found to be unconstitutional in part, without being thrown out completely. That's what saved the ACA from being completely gutted when provisions were found unconstitutional.

It perhaps can also be argued that, since the 14th Amendment was enacted after Article 1, Section 7, that the requirement to honor US debts supersedes Congressional authority to impede the honoring of that debt.

[FBaggins]

6. Not really - those aren't parallel actions.

Take Congress to court and the worst thing that happens is that you lose.

Ignore the debt ceiling and you’re knowingly violating the law. Yes… it’s a law that you now say is unconstitutional, but until a court says so, you’re acting illegally. And if (likely when) a court blocks you… you’ve acted illegally and unconstitutionally.

[Elessar Zappa]

7. If it's found unconstitutional then

I hope Biden ignores it. This court isn’t legitimate.

[Silent3]

8. Take Congress to court and it takes way too long to solve this problem

I could be wrong, but I'll bet that this is one of those laws that simply says what can and can't be done, but specifies no penalties. The only penalty is likely, "stop doing that", and perhaps this becomes grounds to drum up an impeachment which will fail in the Senate.

People have often violated laws they believe are unconstitutional, Presidents among them. In many cases, it's a proud tradition, sometimes not so proud.

[FBaggins]

11. Not really a legal argument

We’ve known this day was coming for months (arguably years). You can’t wait until it’s too late and then claim there wasn’t enough time.


I'll bet that this is one of those laws that simply says what can and can't be done, but specifies no penalties.

That’s essentially every law where presidents are concerned. But that’s not the point. The courts blocking you (which could happen in mere days) means that you can’t actually accomplish anything. And then a finding against you has the additional penalty of harming your electoral chances.

Keep in mind that it wouldn’t necessarily be a partisan split on the vote.

[Shrek]

9. I don't see how this is a constitutional violation

A statutory prohibition on accruing new debt does not repudiate existing debt in any way.

[Silent3]

10. We're creating new debt to cover existing obligations

That's what happens when governments sell bonds.

[FBaggins]

14. The problem with that theory...

Is there is no default position that the executive can spend dollars that are budgeted if they exceed the funds raised by taxes. The only reason that the executive branch can issue debt for any shortfall… is the same law that set a limit on how much could be borrowed.

It’s hard to argue that one side of that coin is constitutional (indeed … required?) and the other side is not.

The only real option is to go to Congress and say “you didn’t give us enough money to spend what you told us to spend. We have to stop now until you fix it”

[Silent3]

16. It's easy to argue for it

The 14th Amendment creates an explicit obligation to honor the debts of the US (other than those incurred via insurrection) that didn't exist when Article 1, Section 7 gave the power to incur debt solely to Congress.

If the President is in a damned if you do/damned if you don't situation, it's perfectly reasonable for the President to chose the option that's best for the country.

[Shrek]

5. If he has the power to issue debt then he also has the power to raise taxes

No one seems to be talking about that.

[Bucky]

13. The Supreme Court won't throw it out until there's a GOP president fighting a Dem Congress

[Kennah]

15. I rather enjoyed how simple and easy his explanation was

There isn't any "line item veto" power in the 14th Amendment, so it's either pay everything or pay nothing.

[Jose Garcia]

17. Why did President Obama, a former law professor, agree to spending cuts

in exchange for Republicans raising the debt ceiling in 2011?