Evan Vucci/AP Photo
President Joe Biden speaks during a Medal of Valor ceremony in the East Room of the White House, May 17, 2023, in Washington.
At one point, House Speaker Kevin McCarthy did say that there would need to be an agreement in principle to end the debt ceiling mess by the end of this past weekend in order to have enough time to ferry it through Congress before the X-date. Well, you’re in for the shock of your life: The weekend passed, and there’s still no agreement. If anything, the parties are further apart than before.
A brief recap: On Thursday, after McCarthy started to make positive noises about a deal, the House Freedom Caucus demanded that negotiations stop and that the Limit, Save, Grow Act, the conservative wish list that the House barely passed last month, be the final offer. Within 24 hours, Republicans stopped the negotiations, then restarted them, then stopped them for most of the weekend, and finally restarted them Sunday night in advance of President Biden’s return to Washington and a meeting with McCarthy today.
Throughout this weekend of fits and starts, the White House leaked that they offered significant spending freezes on both defense and nondefense discretionary spending, amounting to a $1.1 trillion cut over ten years, which Republicans rejected because they want higher defense spending. A Saturday statement from the White House press secretary emphasized closing tax loopholes and further drug price reform (Maybe work on the initial reform so it isn’t useless!), which the president reinforced on a couple of occasions. Meanwhile, Republican demands have gotten more extreme, including stiffer work requirements for SNAP and border security measures that weren’t even in Limit, Save, Grow.
In other words, Republicans are showing to their base (MAGAs) that they’re fighting to get everything they can, while Democrats are showing to their base (centrist op-ed writers) that they’re really responsible, that they have made concessions and are prepared to make more. This dynamic is the inevitable by-product of the corner that the White House has boxed themselves into.
Administration officials have dismissed executive actions to deal with the debt ceiling. After spending months promising not to negotiate, they have completely reversed themselves, and said that only a bipartisan agreement will prevent catastrophe. And they’ve positioned themselves as the reasonable party in case that catastrophe emerges. That combination incentivizes Republicans to make more and more extreme offers. They’re not pretending to be the reasonable ones, and they know the White House has offered themselves no avenue of escape outside of accepting their terms. It’s just a horrible negotiating position that the president willingly adopted, aided by the worst cohort of self-loathing Democrats.
Now that reality has dawned that a compromise really isn’t all that likely, Biden is again talking about the 14th Amendment, but in a bizarre way. “I’m looking at the 14th Amendment as to whether or not we have the authority. I think we have the authority,” Biden said at a press conference at the G7 meetings in Japan. “The question is, could it be done and invoked in time that it would not be appealed, and as a consequence past the date in question and still default on the debt. That is a question that I think is unresolved.”
This is not how the law works. The president doesn’t go to a court and say, “I invoke the 14th Amendment,” the way that Michael Scott once said, “I declare bankruptcy.” You can’t get a court to issue an advisory opinion (the president’s lawyers at the Office of Legal Counsel can, and actually have, but their advice has been hidden from the public since 2011). If you’re the president and you want to keep borrowing money after the debt ceiling is hit because you think you are legally bound to do so by the Constitution, you just keep borrowing money until somebody stops you.
Somebody, of course, would try to stop the president. In fact, this has been the administration’s response to increasingly bold calls from Democrats (like 66 members of the Progressive Caucus) to use the 14th Amendment to keep paying bills. Ezra Klein essentially mainlined the White House’s argument on Sunday: They fear that if they try to use executive action, Republicans will sue, and the conservative Supreme Court will get a crack at deciding it, at which point notions of legality matter less than raw political power. And if they shoot it down, then the White House would shoulder the blame for their power-aggrandizing tactic, losing the cloak of reasonableness they have clung to throughout this crisis.
All of this is well and good in the context of a debating salon or tabletop game or something. But the idea that this situation could proceed without litigation ended on Friday afternoon, when the National Association of Government Employees finally filed for an emergency injunction in their case alleging that the debt ceiling is unconstitutional. As I wrote last Friday, this finally forces the federal judge in the case to make a speedy ruling; before Friday, the case had sat dormant for 11 days.
I did an X-Date story a while back about the case, and a long thread on Twitter on Friday afternoon about the new motion; you can check them both out. NAGE’s argument is that the debt ceiling statute effectively forces the president to use a line-item veto, which has already been ruled unconstitutional. It gives the president excess power. Because Janet Yellen’s extraordinary measures to stay under the borrowing limit included suspending investments into NAGE employee retirement plans, there is active and ongoing harm, which will get worse if the ceiling is hit.
But the important thing to say here is that notion of litigation is no longer theoretical. There is a case, and the plaintiffs are seeking quick-action relief. Anyone spinning out a scenario about what might happen if the debt ceiling statute’s constitutionality is challenged is just being ignorant. It’s being challenged in federal district court in Massachusetts right now.
Which brings us to the interesting part, involving the defendants in the case: Janet Yellen, and Joe Biden. They were served with a summons on May 16, and now have until June 6 to respond. That’s after Yellen’s projected X-date, but they could certainly file earlier. And it would be absurd for them not to: Biden’s entire objection to “invoking the 14th Amendment,” whatever that means, is that it would take too long. Here’s an opportunity with an active lawsuit to get the kind of clarity they’re seeking before the X-date is reached.
So what could Biden do? He could file a response offering no defense on the constitutionality of the debt ceiling, or even agreeing that it’s unconstitutional. That would leave Judge Richard Stearns to have to rule on the injunction, when there is no real argument between the parties. He could seek an “intervenor,” someone with standing to argue in the stead of the president and Treasury secretary, but since they are the only ones who can actually harm the plaintiffs—by failing to execute appropriations, and by furloughing or firing employees—it’s not clear who the intervenor could be.
That might offer a way out of the White House’s political box. “The best way to shift the defaults would be for DOJ to acquiesce in this lawsuit,” argued Jeff Hauser of the Revolving Door Project. “An unopposed complaint doesn’t necessarily demand injunctive relief be granted, but it feels like a good chance, and a ruling there would alter the calculus and shift the onus to the GOP.”
Option B is for Biden to keep finding a way with McCarthy to harm beneficiaries of government services and the broader economy, a year and a half before his re-election. For some reason, Biden sees that as preferable to a pitched legal battle. Well, it’s too late: That legal battle has already been joined.
