Lawrence Tribe's Change of Mind on the Debt Limit

[Copernicus]

Harvard Emeritus law professor, Lawrence Tribe, has come up with a unique argument on how Biden might resolve the debt limit conundrum. Congress has lawfully ordered the president to spend money that requires him to incur debt. Congress also has a law that requires the president not to pay debts beyond a certain fixed limit. Both laws are legal, and the president must obey them. He cannot normally choose to disobey laws, but what does he do when one law contradicts another? That is, he cannot choose to incur a debt, but the debt limit forces him to either pay no debts at all until they authorize payment of debts they ordered the president to incur. That is, the president cannot pick and choose which debts not to pay in order to pay others, because that would be equivalent to a line item veto, which the Supreme Court has already concluded is not a power authorized by the Constitution.

The full argument is here:

Why I Changed My Mind on the Debt Limit​

...

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.


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.

...

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[bilby]

My understanding of US law is that if there's no other way to reconcile two mutually contradictory laws, the more recent is held to apply, as its enactment effectively repeals the earlier law by implication - If you must NOT do A according to a law passed in 1917, and you must do A according to a law passed in 2022, then you must do A, because the more recent law has repealed the earlier law, even if the legislators who passed the 2022 law did not intend this outcome.

So if Congress has passed a budget since 1917 that requires the President to spend a particular sum of money, then a law passed in 1917 requiring that the President may not spend that amount of money is effectively repealed by the new budget.

Of course, I am not a lawyer, but this doesn't seem to be a particularly complicated situation. It's a situation that a lot of powerful and wealthy people desperately want not to be resolved in such an uncomplicated fashion, but then, the law is what Congress has passed as law, not what Congress now wishes they had passed as law instead of what they actually did pass.

 

[Jimmy Higgins]

This is the trouble with law..,. it is nebulous and stupid, and often is whatever a few robed justices say it is. Law can be black and white, law can be 1,000 shades of gray.

Here is the issue I see, Biden authorizes the PAYING of stuff that Congress authorized. Is the GOP going to sue? Are they actually going to go in front of a judge and say it is against the law for the President to pay for what they authorized to pay for? I mean, yeah, they got that one shill judge in Texas that'd rule a ham sandwich was grounds for arresting President Biden, but ultimately, how foolish is the GOP willing to look...

...wait...

nevermind. But back to the issue at hand. Biden authorizes the money to pay for what Congress said to pay for. Is there an appellate court that would actually find in the GOP's favor (not Congress, but the GOP's favor)? They can sue, but who'd pause the spending? We're talking courts meddling in territory unmeddled before. This is where we return to the "law is shit" issue... because black and white, is it as simple as the 14th Amendment makes the budget ceiling bill unconstitutional? I'm certain the alt-right could also have a black and white interpretation as well, but I'm uncertain it is bounded in the Constitution. But in the land of the gray, it could be anything. A judge can say and rule any way they want if they are partisan enough. That is how our system works... and as it gets more partisan, the word work starts trending to past tense.

 

[Cheerful Charlie]

My understanding of US law is that if there's no other way to reconcile two mutually contradictory laws, the more recent is held to apply, as its enactment effectively repeals the earlier law by implication - If you must NOT do A according to a law passed in 1917, and you must do A according to a law passed in 2022, then you must do A, because the more recent law has repealed the earlier law, even if the legislators who passed the 2022 law did not intend this outcome.

So if Congress has passed a budget since 1917 that requires the President to spend a particular sum of money, then a law passed in 1917 requiring that the President may not spend that amount of money is effectively repealed by the new budget.

Of course, I am not a lawyer, but this doesn't seem to be a particularly complicated situation. It's a situation that a lot of powerful and wealthy people desperately want not to be resolved in such an uncomplicated fashion, but then, the law is what Congress has passed as law, not what Congress now wishes they had passed as law instead of what they actually did pass.

There is a difference between a statute passed by Congress and an article of the Constitution. The Constitution trumps any law that negates a provision of the Constitution. To change the Constitution takes passing an amendment that is then ratified by 60% of individual states. Of course there is the matter of gray areas and interpretation 9f what any provision of the Constitution means. Which may depend on the opinion of 6 far right supreme court judges.

 

[RVonse]

See the full article for more context. The NY Times does limit the number of free articles you can read, but you may need to create an account first to read any free articles.

The debt ceiling events are always dramas in which the two parties argue over spending priorities. Other than this, they are meaningless. The US economic problem is that the US has assured itself large trade deficits by moving its manufacturing offshore (when offshored US production is brought to the US to be sold it enters as imports), and the US has undermined its financial dominance by using the dollar’s role as world reserve currency as a weapon to coerce other countries to align their foreign and economic policies with Washington.

China has been and still is at economic war with the US.

 

[Copernicus]

My understanding of US law is that if there's no other way to reconcile two mutually contradictory laws, the more recent is held to apply, as its enactment effectively repeals the earlier law by implication - If you must NOT do A according to a law passed in 1917, and you must do A according to a law passed in 2022, then you must do A, because the more recent law has repealed the earlier law, even if the legislators who passed the 2022 law did not intend this outcome.

So if Congress has passed a budget since 1917 that requires the President to spend a particular sum of money, then a law passed in 1917 requiring that the President may not spend that amount of money is effectively repealed by the new budget.

Of course, I am not a lawyer, but this doesn't seem to be a particularly complicated situation. It's a situation that a lot of powerful and wealthy people desperately want not to be resolved in such an uncomplicated fashion, but then, the law is what Congress has passed as law, not what Congress now wishes they had passed as law instead of what they actually did pass.

Bear in mind that US constitutional law is different from parliamentary law. In a parliamentary system, the legislature usually runs the government that passes the laws. In a constitutional system like ours, the three branches of government are co-equal and have separate powers. Tribe's argument is that, under the Constitution, the president has a specific duty: to faithfully execute the laws that Congress has passed, including the debt limit law. However, the 14th amendment, section 4, which has not been repealed, essentially removes the power of Congress to reneg on payment of debts. Note the text I have placed in boldface:

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. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

This section was crafted to prevent the federal government or state governments from paying debts incurred by the illegal Confederacy. However, in doing so, it affirmed that paying its lawfully incurred debt is a duty of the federal government, which the president must faithfully execute.

There is precedent for a president to ignore a law temporarily, and that goes back to the Civil War, when President Lincoln was forced to temporarily suspend habeas corpus in order to carry out his duty to use military force to defend the United States from seditious rebellion. When faced with contradictory laws, the president can only enforce one of them.

Some have argued that the president could still enforce the debt limit mandate by suspending payment of just some of the debt. However, the Supreme Court has already ruled that a president does not have that power, which would be equivalent to what we call a "line item veto". He cannot legally prioritize which debts to pay. It is all or none.

Effectively, then, the result is that Congress has no authority to cancel payment of the debts it has legally incurred. This is like someone giving you a credit card, ordering you to buy things, and then ordering you to violate the law by not paying for things you have been authorized to buy. Congress cannot make the United States a deadbeat democracy, even if that were not its original intention.

 

[Jimmy Higgins]

Biden biggest worry might be simply the precedence. He doesn't want to write a blank check for the GOP to abuse. Congress is supposed to be doing their job, but instead the GOP Is trying to put the US into a recession so they can win in 2024. It sounds like a raving conspiracy theory, but it is in the wide open. The GOP signed off on what, $1.7 or so in debt under Trump... before Covid-19 and now they want to stop most non-military discretionary spending. And we'd still have a large deficit. So their plan isn't actually addressing a damn thing.

The insane are running the asylum in the House.

 

[Copernicus]

Biden biggest worry might be simply the precedence. He doesn't want to write a blank check for the GOP to abuse. Congress is supposed to be doing their job, but instead the GOP Is trying to put the US into a recession so they can win in 2024. It sounds like a raving conspiracy theory, but it is in the wide open. The GOP signed off on what, $1.7 or so in debt under Trump... before Covid-19 and now they want to stop most non-military discretionary spending. And we'd still have a large deficit. So their plan isn't actually addressing a damn thing.

The insane are running the asylum in the House.

He may not wish to give Congress a blank check, but he doesn't have the authority to do that. Authority comes from the Constitution, not the executive branch, and the Constitution effectively gives Congress a blank check. There is no constitutional mandate to curb spending or not incur debt. Quite the opposite. The Constitution obviously allows Congress to incur as much debt as it sees fit. It just can't later refuse to pay that debt, because that would be violating the constitutional mandate not to place the validity of the "public debt" in question. They can pass a law forcing themselves to go on a diet, but they can't tell the president to stop paying for groceries that they insist on buying and consuming.

 

[Copernicus]

See the full article for more context. The NY Times does limit the number of free articles you can read, but you may need to create an account first to read any free articles.

The debt ceiling events are always dramas in which the two parties argue over spending priorities. Other than this, they are meaningless. The US economic problem is that the US has assured itself large trade deficits by moving its manufacturing offshore (when offshored US production is brought to the US to be sold it enters as imports), and the US has undermined its financial dominance by using the dollar’s role as world reserve currency as a weapon to coerce other countries to align their foreign and economic policies with Washington.

China has been and still is at economic war with the US.

That may be, but debt ceilings cannot prevent the president from performing his constitutionally mandated duty to pay our debts. It is basically an intellectual exercise by Congress to instill discipline in itself. It is up to them to stick to their prescribed debt limit, not the president. He is sworn to faithfully execute the laws he can execute, not ones that are legally impossible to execute. They can't order a president to default on the public debt. 14th amendment says so.

 

[Copernicus]

I guess I'm as guilty as others at inviting this derail. The Trump drama really isn't the topic here.

Biden has announced that he is considering Tribe's argument regarding the 14th amendment. It is not quite the long shot that it seemed before Tribe reframed the question of how to approach the issue, and it just might give the administration an excuse to continue borrowing. However, I don't think that the public will grasp it. They still seem to think that the argument is over paying off future debt rather than existing debt. They don't seem to realize that the government could be stopped from issuing treasury bonds to help pay for services they are getting now. As Tribe pointed out, there is no line item veto, so all borrowing must apparently halt when the debt limit is exceeded. Right now, they are using masking tape and chewing gum to hold the economy together, as we approach the brink. I don't understand what else Biden can do other to invoke the 14th and keep borrowing money without Congressional approval. The public largely believe that it is the current administration that has run up the public debt rather than Congress. That is how the Republicans continue to frame it while they do not control the White House.

 

[Loren Pechtel]

See the full article for more context. The NY Times does limit the number of free articles you can read, but you may need to create an account first to read any free articles.

The debt ceiling events are always dramas in which the two parties argue over spending priorities. Other than this, they are meaningless. The US economic problem is that the US has assured itself large trade deficits by moving its manufacturing offshore (when offshored US production is brought to the US to be sold it enters as imports), and the US has undermined its financial dominance by using the dollar’s role as world reserve currency as a weapon to coerce other countries to align their foreign and economic policies with Washington.

China has been and still is at economic war with the US.

It's not manufacturing that's the issue. It's oil. And we import things and export services--it's not nearly as imbalanced as you think.

 

[Copernicus]

See the full article for more context. The NY Times does limit the number of free articles you can read, but you may need to create an account first to read any free articles.

The debt ceiling events are always dramas in which the two parties argue over spending priorities. Other than this, they are meaningless. The US economic problem is that the US has assured itself large trade deficits by moving its manufacturing offshore (when offshored US production is brought to the US to be sold it enters as imports), and the US has undermined its financial dominance by using the dollar’s role as world reserve currency as a weapon to coerce other countries to align their foreign and economic policies with Washington.

China has been and still is at economic war with the US.

It's not manufacturing that's the issue. It's oil. And we import things and export services--it's not nearly as imbalanced as you think.

Although there is an argument to be had on these issues, it has nothing to do with the debt limit, which is only about paying off existing debt. In order to do that, the government must issue more treasury bonds, among other things, but it cannot do so without authorization from Congress. Any argument that we ought to default on existing debt in order to get the government to change its spending priorities needs to take place independently of paying off debt that Congress itself has voted to incur. All the debt limit does is it calls into question the full faith and credit of the United States, which is theoretically forbidden by the Constitution. Either Republicans give a damn about the Constitution and the financial security of the country, or they do not. Right now, it looks like they do not.

Lawrence Tribe has proposed a different solution to the problem than has been offered in the past. I hope it works, if needed. Otherwise, we are all in deep trouble, because it doesn't look like the House majority is capable of doing the right thing.

 

[Jimmy Higgins]

See the full article for more context. The NY Times does limit the number of free articles you can read, but you may need to create an account first to read any free articles.

The debt ceiling events are always dramas in which the two parties argue over spending priorities. Other than this, they are meaningless. The US economic problem is that the US has assured itself large trade deficits by moving its manufacturing offshore (when offshored US production is brought to the US to be sold it enters as imports), and the US has undermined its financial dominance by using the dollar’s role as world reserve currency as a weapon to coerce other countries to align their foreign and economic policies with Washington.

China has been and still is at economic war with the US.

It's not manufacturing that's the issue. It's oil. And we import things and export services--it's not nearly as imbalanced as you think.

The trade deficit is red herring, used by people that have this dream of returning America back to its zenith in the 1970s. Some people think that if we'd just be building stuff in the US, everything would be better. And if we just used the telegraph instead... and horse pulled carriages... and leeches...

There is no worse problem solver than a person that wants to pretend life is permanent and they have a mistaken idea as to how things used to be.

It also ignores that we actually do produce quite a bit in the US.

 

[Loren Pechtel]

The trade deficit is red herring, used by people that have this dream of returning America back to its zenith in the 1970s. Some people think that if we'd just be building stuff in the US, everything would be better. And if we just used the telegraph instead... and horse pulled carriages... and leeches...

There is no worse problem solver than a person that wants to pretend life is permanent and they have a mistaken idea as to how things used to be.

It also ignores that we actually do produce quite a bit in the US.

Yup, it's really about those factory jobs that were mostly lost to machinery, not sent overseas. There are a lot less manual labor type jobs around these days, especially the high paying ones.

 

[ZiprHead]

The impeachment derail has been split to here.

 

[Jimmy Higgins]

I ponder the Impoundment Act... that thing that Trump violated with his Ukraine scam. Biden isn't in control of the spending. He doesn't pay for what Congress authorized, that is a violation of the law.

This almost feels like an impeachment trap. Biden spends above the debt ceiling, and they impeach him.

I mean otherwise, as I think I've previously stated, the GOP would need to go to a very partisan court to not be laughed out for proclaiming Biden broke the law moving forward spending on a budget CONGRESS passed. For Biden, I think it is as simple as "Sue me". You authorized the spending... I'm spending it on what you said to spend it on. This isn't a trick or a gimmick. He isn't impounding funds, moving from one thing to another. He is simply doing his job. Don't need any argument, don't need a coin, don't need anything but an authorization to spend from Congress (which he has!).

 

[Elixir]

the GOP would need to go to a very partisan court

That seems to be a low bar, since Trump managed to totally trash and corrupt the judiciary.

 

[Copernicus]

I ponder the Impoundment Act... that thing that Trump violated with his Ukraine scam. Biden isn't in control of the spending. He doesn't pay for what Congress authorized, that is a violation of the law.

This almost feels like an impeachment trap. Biden spends above the debt ceiling, and they impeach him.

I mean otherwise, as I think I've previously stated, the GOP would need to go to a very partisan court to not be laughed out for proclaiming Biden broke the law moving forward spending on a budget CONGRESS passed. For Biden, I think it is as simple as "Sue me". You authorized the spending... I'm spending it on what you said to spend it on. This isn't a trick or a gimmick. He isn't impounding funds, moving from one thing to another. He is simply doing his job. Don't need any argument, don't need a coin, don't need anything but an authorization to spend from Congress (which he has!).

I don't think it would be hard to prove that Biden broke the law, if he decided to incur new debt that Congress refused to authorize in order to pay off old debt. That's a bit like trying to pay off a credit card bill with another credit card that one just acquired. The problem is that Congress has not raised new taxes to cover the payment of existing debt, and Biden is legally obligated to pay the bills that they have run up. What is happening now is that the House is trying to use the law to blackmail Biden into breaking the law.

According to Constitutional law expert, Lawrence Tribe, there is a precedent for executive action when a president faces a conundrum like that--Abraham Lincoln's suspension of habeas corpus. Biden would have to choose which law to break, and he should choose to break the debt limit law. In a way, he would be declaring the 1917 debt limit law unconstitutional, except that only the courts can judge the constitutionality of a law. So it would still have to go to the Supreme Court ultimately, and their refusal to agree would be disastrous when faced with a fait accompli. There is really nothing they could do other than go along with Biden or fume. Meanwhile, the credit rating of the US government would be in the toilet--the direction in which Republicans are trying to steer it right now.

 

[Jimmy Higgins]

I ponder the Impoundment Act... that thing that Trump violated with his Ukraine scam. Biden isn't in control of the spending. He doesn't pay for what Congress authorized, that is a violation of the law.

This almost feels like an impeachment trap. Biden spends above the debt ceiling, and they impeach him.

I mean otherwise, as I think I've previously stated, the GOP would need to go to a very partisan court to not be laughed out for proclaiming Biden broke the law moving forward spending on a budget CONGRESS passed. For Biden, I think it is as simple as "Sue me". You authorized the spending... I'm spending it on what you said to spend it on. This isn't a trick or a gimmick. He isn't impounding funds, moving from one thing to another. He is simply doing his job. Don't need any argument, don't need a coin, don't need anything but an authorization to spend from Congress (which he has!).

I don't think it would be hard to prove that Biden broke the law, if he decided to incur new debt that Congress refused to authorize in order to pay off old debt.

But Biden is required by law to spend the money Congress authorized for the purposes they authorized it for.

That's a bit like trying to pay off a credit card bill with another credit card that one just acquired. The problem is that Congress has not raised new taxes to cover the payment of existing debt, and Biden is legally obligated to pay the bills that they have run up. What is happening now is that the House is trying to use the law to blackmail Biden into breaking the law.

It certainly seems that way. Has to be the most unethical act in Congress since secession.

According to Constitutional law expert, Lawrence Tribe, there is a precedent for executive action when a president faces a conundrum like that--Abraham Lincoln's suspension of habeas corpus. Biden would have to choose which law to break, and he should choose to break the debt limit law. In a way, he would be declaring the 1917 debt limit law unconstitutional, except that only the courts can judge the constitutionality of a law. So it would still have to go to the Supreme Court ultimately, and their refusal to agree would be disastrous when faced with a fait accompli. There is really nothing they could do other than go along with Biden or fume. Meanwhile, the credit rating of the US government would be in the toilet--the direction in which Republicans are trying to steer it right now.

It can only go to the Supreme Court if it gets to the Supreme Court. Pondering it a bit deeper, I don't think they can sue at their favorite District Judge's court in Texas where the Judge can rule Biden being President is unconstitutional. I think it is held to DC Court of Appeals. And they (the GOP) would have a monstrous effort to explain how in the fuck they passed spending they knew would lead to a deficit but somehow not authorize additional deficit spending. They'd be laughed out of the DC Court of Appeals.

Which I suppose is where impeachment comes in. They impeach over this fucking ridiculous act of negligence. Of course, they can't convict. But they impeach, make it a damn circus... and they aren't responsible for anything because Biden authorizes the bond sales, so we don't default, but it makes us look like a bunch of damned fools.

 

[Copernicus]

I ponder the Impoundment Act... that thing that Trump violated with his Ukraine scam. Biden isn't in control of the spending. He doesn't pay for what Congress authorized, that is a violation of the law.

This almost feels like an impeachment trap. Biden spends above the debt ceiling, and they impeach him.

I mean otherwise, as I think I've previously stated, the GOP would need to go to a very partisan court to not be laughed out for proclaiming Biden broke the law moving forward spending on a budget CONGRESS passed. For Biden, I think it is as simple as "Sue me". You authorized the spending... I'm spending it on what you said to spend it on. This isn't a trick or a gimmick. He isn't impounding funds, moving from one thing to another. He is simply doing his job. Don't need any argument, don't need a coin, don't need anything but an authorization to spend from Congress (which he has!).

I don't think it would be hard to prove that Biden broke the law, if he decided to incur new debt that Congress refused to authorize in order to pay off old debt.

But Biden is required by law to spend the money Congress authorized for the purposes they authorized it for.

Absolutely. That's not the law he would be breaking, if he broke the debt limit law, which has never been declared unconstitutional.

That's a bit like trying to pay off a credit card bill with another credit card that one just acquired. The problem is that Congress has not raised new taxes to cover the payment of existing debt, and Biden is legally obligated to pay the bills that they have run up. What is happening now is that the House is trying to use the law to blackmail Biden into breaking the law.

It certainly seems that way. Has to be the most unethical act in Congress since secession.

Generalizations like that almost never stand up, but I'm not going to argue the point. I could argue that McCarthy is the worst Speaker since the founding of Congress, but I wouldn't bet on that either. I would bet on Trump being the worst president, however.

According to Constitutional law expert, Lawrence Tribe, there is a precedent for executive action when a president faces a conundrum like that--Abraham Lincoln's suspension of habeas corpus. Biden would have to choose which law to break, and he should choose to break the debt limit law. In a way, he would be declaring the 1917 debt limit law unconstitutional, except that only the courts can judge the constitutionality of a law. So it would still have to go to the Supreme Court ultimately, and their refusal to agree would be disastrous when faced with a fait accompli. There is really nothing they could do other than go along with Biden or fume. Meanwhile, the credit rating of the US government would be in the toilet--the direction in which Republicans are trying to steer it right now.

It can only go to the Supreme Court if it gets to the Supreme Court. Pondering it a bit deeper, I don't think they can sue at their favorite District Judge's court in Texas where the Judge can rule Biden being President is unconstitutional. I think it is held to DC Court of Appeals. And they (the GOP) would have a monstrous effort to explain how in the fuck they passed spending they knew would lead to a deficit but somehow not authorize additional deficit spending. They'd be laughed out of the DC Court of Appeals.

Which I suppose is where impeachment comes in. They impeach over this fucking ridiculous act of negligence. Of course, they can't convict. But they impeach, make it a damn circus... and they aren't responsible for anything because Biden authorizes the bond sales, so we don't default, but it makes us look like a bunch of damned fools.

I don't think that House Republican incumbents want to be running on their failure to raise the debt ceiling after a failed blackmail attempt to get Biden to adopt their legislative goals. That doesn't sound like a winning strategy to me, but right now they are thinking that the incumbent president always loses no matter what they do. Like Biden lost out in the 2020 midterms after the Supreme Court torched Roe v Wade. Nobody thinks an impeachment effort would be worth tying up Congress over during a national crisis (i.e. crashing economy), but Republicans these days don't seem to be able to stop themselves from doing stupid things.

Anyway, a Constitutional crisis would not have to work its way up from lower courts. It would probably go directly to the Supreme Court on an emergency basis. They could punt by refusing to make a ruling on a dispute, thus allowing Biden the same leeway that Lincoln and Bush had when they suspended habeas corpus. (Bush suspended it in order to keep arrested foreign combatants in US custody. It is still suspended for Guantanamo.)