What Should Biden Do About the Debt Limit?

Today on TAP: Negotiating with the GOP would be a disaster, but not negotiating has political perils, too. Which leaves—what?

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So what should Joe Biden do about the debt limit, now that the Republicans have delivered their pay-up-or-we’ll-kill-the-economy-and-blame-you ransom note?

The most telling and important thing about the GOP bill that squeaked through the House yesterday on a straight 217-to-215 party-line vote is how little of it deals with fiscal issues as such. The cuts it proposes are directed at the social and environmental policies enacted by Democratic presidents and Congresses past and present. It targets the boosts to domestic manufacturing that have already led to companies committing to building factories producing batteries for electric cars; it targets the forgiveness of student debt; it compels recipients of Medicaid and food stamps to get a job or work longer hours.

Having been part of the Obama administration’s debt-ceiling negotiations with Republicans, which led to reductions in spending that prolonged for years the recovery from the 2008 crash, Biden has been clear that he won’t negotiate with the hostage-takers again. But where does that leave him? To people who don’t closely follow what’s going on in Washington—that is, to many and quite probably most Americans—his refusal to negotiate as the clock ticks down to possible default could appear irresponsible, which is precisely the appearance that Republicans hope takes hold.

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To counter that appearance, Biden will have to talk to the American people more clearly and frequently than he has thus far. He has to make much clearer than he yet has that acceding to the Republicans’ demands will tangibly hurt millions of Americans (including Republican Americans), not to mention setting back efforts to counter the climate crisis. And he will have to forcefully contrast the Republicans’ plan to cut spending on programs that have broad public support to his own plans to raise taxes on the rich. That’s an argument he can win. And in making these cases, Biden will have to be joined by every other elected Democrat.

But then what? That’s what he has to say, over and over, but having said it, what does he do?

I think the only way out of this fix is for him to invoke the 14th Amendment, the Reconstruction-era addition to the Constitution which makes clear that questioning, much less defaulting on, the debt is plainly unconstitutional. Here’s the language:

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.

Note that the language about affirming the debts incurred by government’s having waged the Civil War says that it’s “including” those debts, not that it’s limited to those debts. Note, too, that the 14th Amendment was enacted in 1868, but that Congress didn’t get around to voting on authorizing the taking on of more debt until 1917, before which, the debt rose without Congress even viewing the issue as one that was subject to its consideration.

By declaring that congressional refusal to raise the debt limit would be a clear violation of the 14th Amendment, and thus that it is automatically raised no matter what Congress does, Biden would throw the issue into the Supreme Court. If the justices are principled originalists and textual literalists, they would have to note that the Founders never considered giving Congress the power to repudiate the new nation’s debt, and that the “Second Founders” who amended the Constitution after the Civil War explicitly forbade Congress, or anyone, from repudiating or defaulting on the debt. Of course, we know that the Court’s self-proclaimed originalists are actually partisan relativists, but that in itself is a case that Biden and the Democrats can make if the necessity arises.

Even before the Court would rule, Republicans would argue that Biden is exceeding his powers, which would require Biden to do more of what I outlined above: speak more clearly and forcefully than he has about the real stakes in this battle. Those of us who don’t want to see every bit of social, economic, civil rights, and environmental legislation enacted since 1935 repealed by Republican hostage-taking might wish for a more forceful champion than Biden. But, hey—you go to war with the president you have.

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