Laurence Tribe -- Why I Changed My Mind on the Debt Limit

[ancianita]

Last edited Sun May 7, 2023, 12:09 PM - Edit history (1)

...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.

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 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 “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 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?”....

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

[7wo7rees]

1. Lawrence Tribe. Another "national treasure" n/t Ms7wo7rees

[ancianita]

3. Excuse me? Your budget & debt, unlike America's, isn't covered by the 14th Amendment.

Let's hope you get that while you draw some weird parallel here.

[paleotn]

5. Lincoln ignored SCOTUS when it interfered with his oath to defend and protect the Constitution.

Chief Justice Taney's southern sympathies and the suspension of habeas corpus for example.

https://constitutioncenter.org/blog/lincoln-and-taneys-great-writ-showdown

The same applies to Biden and Congress over the debt ceiling. Biden cannot defend and protect the Constitution, particularly the 14th Amendment, and let Congress default on US debt. I say, just ignore them and keep issuing new debt. His oath demands it. Will it piss off Republicans? You bet, but so what? When are they NOT pissed off. They'll attempt to impeach, but again so what? That won't get any traction and won't go anywhere.

[ancianita]

6. Yes. Thanks for clarifying the parallel.

I doubt the Repubs would impeach since, while they're a slim majority, they know they still wouldn't really have the votes to get it out of the House. Media (corporate as it is) would make them look stupid for even trying.

[anciano]

7. Agreed....it's about paying bills you already incurred.

Negotiating new spending should be a separate discussion. Refusing to raise the debt ceiling is like going to a restaurant for dinner with a friend and refusing to pay the check for what you ate because you can't agree on what you want to order next time.

[ancianita]

9. Yep. Thanks for the restaurant example which even everyday trumpcult could understand.

[Fiendish Thingy]

8. I agree, but if SCOTUS does not, Biden must be willing to ignore them

Biden must welcome the much-needed constitutional crisis (not to mention impeachment proceedings) this would trigger, both to crush the unconstitutional debt ceiling law, as well as to force SCOTUS to either support his decision, or instantly decimate the power of the court.

I hope Biden has established that Yellen is on board with this strategy.

[ancianita]

10. Nah. SCOTUS couldn't possibly ignore the explicit constitutional bottom line language re this.

SCOTUS really can't crush constitutional debt ceiling law without destroying itself as a legitimate branch of government, imo.

Pretty sure that Biden and Yellen have agreed on what to do come June 1.

[Fiendish Thingy]

12. Did you mean unconstitutional?

How would SCOTUS agreeing with the 14th amendment and ruling the debt ceiling law unconstitutional destroy their legitimacy?

(At least that’s how your sentence reads to me- there’s a distinction between the 1917 debt limit LAW, and the language of the 14th amendment, while not a statutory law, determines the constitutionality of the laws)

[ancianita]

13. No. But I'll give your reasoning more thought, thanks.

Wouldn't SCOTUS have to already accept the concurrence of both the 1917 debt limit law and the 14th?
So, if a debt suit were to be brought before SCOTUS (I don't think that will happen, tho'), it would have to overrule the 1917 law in favor of the 14th, right?

Isn't that the outcome of Tribe's constitutional analysis here?

[Fiendish Thingy]

14. Yes, we agree

We’re just using different terminology it seems.

If Biden asserts that the 1917 law is unconstitutional and instructs Yellen to keep paying bills and issuing debt, SCOTUS, in order to maintain any shred of legitimacy would have to rule the 1917 law unconstitutional if someone brought suit (or simply refuse to hear the case, which is the coward’s way out IMO).

Any ruling upholding the 1917 law, and nullifying the 14th amendment, would have to be ignored by the Executive Branch, or risk not only the chaos of default, but strengthening the tyranny of the judicial branch.

[ancianita]

15. Okay. So,

here's the thing. I think you're mistaken about Biden asserting the 1917 law. He won't assert the 1917 law, only the 14th because he is, in fact, by doing that, staying within his constitutional oath and duty. If he were to assert the 1917 law, he'd leave himself open to a suit. He knows better than to do that.

Here's the other thing. Why are you asserting that a law can nullify the 14th? That's not how law works, and not how SCOTUS would see the debt. It would frame its logic by the Constitution, not by a law.
That's where I think your reasoning is mistaken again.

[Fiendish Thingy]

19. You misunderstand me

I’m saying Biden would assert that the 1917 is unconstitutional , thus supporting the constitutional primacy of the 14th amendment over the 1917 law

Isn’t that what you’re saying as well?

[ancianita]

22. Okay, now I understand that you meant that. Thanks.

When you put it that way, yes, I'm also saying that.

[bullimiami]

11. Exactly. Congress passed a budget and it was signed into law. They will also have that opportunity.

The debt ceiling is bs.

[usonian]

16. Joe will do the right thing.

So only congress can declare war, for example.

How many times since WWII has that happened? And the ensuing 80+ years of peace?

President has plenty of power. Since 9/11?

[MichMan]

17. So if he changed his mind, it sounds like Tribe had the opposite opinion previously.

What changed legally since the laws he is referring to have been in place for decades ?

[erronis]

18. I also wondered about that phrase "changed his mind" without clarification in the OP

Here's what is in the NYT on this issue. I still don't think completely clarifies Tribe's mental process.

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 on the 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 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.

[LetMyPeopleVote]

27. Thank you for posting this

[ancianita]

23. My take is that it's a title that would draw a pro-Republican audience.

I don't believe he ever had a different mindset about the 1917 law or the Constitution. It's as if, in the process of drawing that audience in by seeming to think out loud about the "questions," he arrives at the point he intended from the start.

[Farmer-Rick]

20. Since SCOTUS is so willing to violate common decency for money

And are more concerned about how much free fees, vacations, wives' salaries and tuition they can squeeze out of their rulings, I would think they would swat down Congress in a heartbeat.

Since they would not be getting paid either. Neither would any of their filthy rich friends who obviously hold government debts.

[ffr]

21. Exactly. And if you have to contemplate that for more than a second, you don't know what TFG or

Mitch McConnell would do given what Tribe said.

Make it so.

[Joinfortmill]

24. Don't be surprised if we see Biden do exactly this in an Address to the Nation...

because these crazy phucks are willing to burn the entire economy down.

[ancianita]

25. Right. Biden knows exactly what to do, and will have the national audience's support.

Also, don't be surprised if Biden does more than one press conference -- before an after he acts -- too.

[Cha]

31. And PJB is Determined to STOP

them

[LetMyPeopleVote]

26. The 14th Amendment allows the President to take lawful actions to prevent default on our debt

Link to tweet

[ancianita]

28. "...nobody has standing in court to challenge the President."

Thanks for your post.

[thesquanderer]

29. Indeed. Time for Biden to channel his inner Willy Wonka.

[ancianita]

30. LOL. Totally!

That’s what we’re all about — being right about how governing works!