Graeme Sloan/Sipa USA via AP Images
Senate Majority Leader Chuck Schumer speaks to the media during a press conference on the debt ceiling, April 17, 2023, at the Capitol in Washington.
Twenty-three years ago, Boston Celtics coach Rick Pitino admonished fans of his young, struggling team by telling them they were living a fantasy. “Larry Bird’s not walking through that door, fans. Kevin McHale’s not walking through that door and Robert Parish is not walking through that door … And as soon as they realize that those three guys are not coming through that door, the better this town will be for all of us.”
You can imagine Janet Yellen saying something broadly similar regarding the debt ceiling at this point. The trillion-dollar coin isn’t walking through that door. The 14th Amendment isn’t walking through that door. Premium bonds are not walking through that door. She did it again Thursday at a meeting of G7 finance ministers in Japan. “There would clearly be litigation around” invoking the 14th Amendment’s public debt clause, Yellen said. “It’s not a short-run solution … it’s legally questionable whether or not that’s a viable strategy.”
As I have said, the White House strategy on executive action to solve the debt ceiling crisis has been to dismiss without rejecting. But with Yellen, the most cautious of Biden’s advisers, it’s hard to tell whether she’s making much of a distinction between the two. And the above statement is no different than what Joe Biden said on Tuesday: Invoking the 14th would trigger a lawsuit, and by the time it was all figured out, America will have hit the X-date and defaulted on its debt for the first time in history, so it’s a no-go.
Biden held out this idea of using the 14th later to get a legal ruling on the constitutionality of the debt limit, which has hitherto been tricky. Without a crisis point, it’s hard to see who would have standing to sue, including the executive. But that crisis point is here right now. Holders of existing Treasury bonds fear not being paid in a timely manner. If they tried to sell their bonds today, they would have to sell at a premium, as evidenced by the Treasury spreads going nuts as markets price in the risk of default. That is a real financial loss in market value, as a result of congressional inaction.
That’s why a bondholder would be an ideal plaintiff to sue Janet Yellen for refusing to pay legally obligated debt, in violation of the 14th Amendment clause that “the validity of the public debt … shall not be questioned.” So far, a litigant in that predicament has not stepped forward, but the National Association of Government Employees (NAGE) has. If they succeed, the waiting game that Yellen and Biden have said precludes them from taking unilateral action would be turned on its head; the courts will have issued a ruling that the government must repay these previously incurred debts.
It’s rather incredible for unions and liberals to be counting on the conservative judiciary to bail the Democratic president out of a hostage-taking event from House Republicans. But if the case advances through Massachusetts district judge Richard G. Stearns—a Clinton appointee—to whom it has been filed, and to the Supreme Court, John Roberts and his colleagues would have to decide whether they want to be the sole reason that America enters financial collapse. In terms of political tactics, this seems smart enough—it would be a difficult position for them to take.
But is the current NAGE case, the only one on the docket at the moment, the right vehicle for this effort? Let’s read the complaint, which is only 11 pages. The plaintiffs actually don’t merely invoke the 14th Amendment, but rather offer a number of constitutional grounds for the courts to latch onto in ruling the 1917 debt ceiling statute unconstitutional.
NAGE, which represents 75,000 federal employees in various government agencies, has experienced work disruption before in association with government shutdowns; reaching the borrowing limit is different from those but would likely have the same effect of triggering furloughs or layoffs. In fact, the “extraordinary measures” that Yellen (like other Treasury secretaries before her) has taken to delay the X-date represent an existing harm to NAGE members; she stopped reinvesting in member retirement and health benefit funds and suspended new investments in other benefit funds. That’s the existing harm that can trigger standing to sue, in addition to the fact that, under current law, NAGE members could very well lose their jobs and see their benefits harmed.
The complaint states that, should the borrowing limit be reached, the executive branch will have a conundrum. “Under Article II of the Constitution, the President is obligated to execute all the laws, without exception,” it reads, “and may not be placed by Congress in a position where the President has to determine what laws are of continuing force and require payment.” The debt ceiling statute creates this problem, since it forces the president to either violate the 14th Amendment (which guarantees payment to debtholders) or violate the laws requiring implementation of programs that will no longer get appropriations.
So while the case is broadly similar to the “invoke the 14th” arguments many have made, it’s framed in a conservative way, saying that the statute forces the executive branch to make decisions about spending that are exclusively reserved for Congress. It’s a separation of powers problem, in other words, a charge of excessive executive power. Ruling the debt ceiling statute unconstitutional solves this problem, by freeing the executive of the need to choose which laws to violate.
It even gives Congress the option of changing the debt ceiling statute to say particularly what they would delegate to the executive regarding prioritization of payments. (That’s been proposed by Republicans but is unlikely to ever pass.) Congress has done this in the case of the Antideficiency Act by allowing the executive temporary authority to spend on essential services while a budget is being worked out. There is no such option with the debt ceiling; therefore it violates the Constitution.
As a final measure, the lawsuit cites the Fifth Amendment protection of due process (as well as another clause of the 14th, the equal protection clause) to say that Congress hasn’t set forth rules on who will and who won’t lose money in the event of a debt ceiling breach, and therefore the statute is unconstitutional on those grounds.
So that’s all well and good. The question, of course, is whether it will work. One possible problem was brought up by Tommy Bennett, a law professor at the University of Missouri. He notes that the executive has the option of minting the trillion-dollar coin to cover obligations, or issuing premium bonds known as consol bonds, with no principal amount and no maturity date but high interest payments, to take in much more in borrowing than the face value. (See explanations of both, here and here.) Because these options are available, it gives the executive a way out of the lose-lose choice of violating one law or the other. And if that is available, then you can’t say the debt ceiling statute forces the executive to break the law.
“If I were advising the Biden administration, I would urge them to exhaust all non-constitutional options,” Bennett wrote. “Otherwise, they will be susceptible to the criticism that the dilemma between the debt ceiling and the payment of non-discretionary spending is an illusory one.”
That’s a pretty big problem for the plaintiffs. And it’s unclear whether the executive branch is willing to assist them by reaching for these solutions. It’s possible that prior Office of Legal Counsel opinions on the coin, which do exist, could be used as evidence in the case—in particular, if they state that the president cannot use the coin, that would help the NAGE case. But consol bonds seem pretty legal, and available as an option.
That’s bad for the case, though it’s not clear Judge Stearns will see it that way. He may ignore the other statutes and rule with the plaintiffs, sending it eventually to the Supreme Court. And given the exigency of the case, he may do it quickly. Then it gets thrown into the Supremes’ lap, where it really becomes a political matter.
But if Judge Stearns rejects the case, that throws the decision right back in Janet Yellen’s lap. If negotiations between Biden and Congress yield nothing—which you have to see as a distinct possibility at this point—Yellen has to make a decision on how to proceed. She has options that, though she clearly finds them distasteful and unreasonably expensive, appear perfectly legal. A favorable court ruling might not be walking through that door.
