Biden Should Make the Debt Ceiling John Roberts' Problem
Default on US debts is unconstitutional - and Supreme Court should clean up its own mess hamstringing Congress and President's ability to solve budget conflicts short of threats of economic Armageddon
The 14th Amendment states the “validity of the public debt…shall not be questioned,” a phrase many argue makes the debt ceiling unconstitutional. The point was to avoid letting insurrectionists take office, then default on previous debts. Back then, the debts were to pay for the Civil War, but the point remains the same.
Quite a few commentators have made that argument, so I will focus on why it’s poetic justice for Chief Justice Roberts and the Supreme Court to clean up this mess since it’s largely one of their making.
For decades, both Congress and the President have recognized that our rigid institutions - polarized parties, disputes between two chambers, the Senate filibuster, an expanded regulatory state - all make budgetary politics more complicated. Over multiple decades, they put in place institutional rules that would allow smoother negotiations between the Presidency and Congress, from the Impoundment Control Act of 1974 to the Line Item Veto to legislative vetos in multiple bills.
And the Supreme Court partly or completely overturned almost all of those rules.
Notably, these were rules that BOTH Congress and the President had agreed to, largely to avoid the kinds of institutional crises that overtook the Nixon Presidency (which included a budgetary component as part of the more general abuses of Executive Power) and to avoid exactly the all-or-nothing game of budgetary chicken that the debt ceiling fight has become. There are plenty of criticisms of any of those institutional rules, but the Supreme Court taking most off the table just helped contribute to the crisis we now find ourselves in.
“Payment Prioritization” is Like a Last Minute Line Item Veto
Republicans are arguing that even without a deal, Biden can just spend tax money coming in each day on “priorities” and just not pay for other budget items. Or as Steve Moore at Fox News describes McCarthy’s plan:
Republicans are working on a contingency plan that ensures the debt payments are met and Social Security checks go out as the top priority. But other low-priority programs – like the Department of Education, foreign aid, energy programs, etc. will shut down until a deal is made.
The idea that Biden would choose GOP spending priorities while waiting for a deal is somewhat fanciful on its face, but in any case, a plan where a President can approve some Congressionally-authorized spending while refusing to spend other authorized spending sounds remarkably like a Line Item Veto.
Which the Supreme Court has already ruled is unconstitutional.
Back in 1998, in the case Clinton v. New York, the Supreme Court declared that the line-item veto, where the President was allowed to veto individual parts of a bill, rather than the whole thing, was unconstitutional. The Court’s decision hinged on the relatively arcane “Presentment Clause”, where the Court argued only the full bill and not the individual items were presented to the President - even though Congress had passed a law, the Line-Item Veto, declaring that when a bill was submitted, each item WAS being presented for an individual veto.
While there is a viable historical argument for the Court’s interpretation, the question is why graft a technical discussion from 1787 onto negotiations between Congress and the President meant to deal with budgetary problems of two centuries later? If Congress and the President both agree such an approach is reasonable, why should the Court second-guess the elected branches with their own judgment?
I’m not a big fan of the Line-Item Veto but the basic idea was that Congress recognized that in the course of their own internal negotiations, they often bid up the cost of bills trying to win votes, so a Line-Item Veto would discourage such “Christmas Tree” additions as they were sometimes called. Whether it was the best approach, it was an attempt to manage a real problem and the Supreme Court took the option away.
And it was hardly the first time.
The Nixon Legacy and the Legislative Veto
After Nixon’s misuse of the impoundment power, Congress put in several new restrictions on the impoundment power to allow the President to defer spending budget items for up to a year, unless either the House or Senate disapproved the budgetary deferral. This provision was struck down by the courts in City of New Haven v. United States, 809 F.2d 900 (D.C. Cir. 1987). This decision by the DC Circuit Court of Appeals followed a recent Supreme Court decision INS v. Chadha that had ruled that any legislative veto was unconstitutional.
For decades, Congress and the President had agreed to allow the President to make regulations or discretionary spending decisions- but gave Congress the power to vote in a chamber to block those regulations as failing to meet the meaning of the law as envisioned by Congress. This addressed the real problem that Congress lacked the expertise and time to specify the rules for every power given to departments or agencies of the Executive Branch but wanted to have a check on its decision-making if it seemed to deviate too far from the original Congressional intent.
By shutting down legislative vetos in multiple laws, this meant any flexibility given to a President could be abused- and more importantly, it meant agencies had little reason to consult with Congress before implementing regulations or making discretionary spending decisions.
After Chadra, a certain ranking minority member of the Senate Judiciary named Joe Biden wrote that in the modern age, the Court seemed focused on preserving the separation of powers when, quoting scholar James Sundquist, “the fundamental problem in trying to make the government of the United States work effectively, is not to preserve the separation of powers but to overcome it.” He noted that the legislative veto was just such a mechanism that was used for fifty years before the Court struck it down in 1983.
While Biden at the time was hopeful that new mechanisms could be developed to achieve the same goals as the legislative veto- especially given problems with its application under the influence of corporate lobbying that he details - his law review article shows he has decades spent evaluating the problems of managing a complex administrative state in a situation where the Supreme Court keeps hamstringing the systems Presidents and Congress have approved to deal with that complexity.
Without these more complex systems of approval and disapproval that encourage back-and-forth negotiations between the branches on specific policies, we end up with Congress having to rely on more blunt instruments, such as threats to shut down the government or threats to throw the country into default as the only tools to negotiate over the details of government.
This is a stupid way to structure relationships between Congress and the President, but it is the one the Supreme Court has created by repeatedly striking down alternative arrangements - emphasizing again that these arrangements were ones both Congress and the President had agreed to.
So it makes sense for Biden to declare the Debt Ceiling unconstitutional - and kick it over to the Supreme Court to either agree with him or propose a solution that complies with the constitutional straightjacket the Court itself has imposed on negotiations between the elected branches AND doesn’t lead to the nation defaulting on its obligations.
A Sidenote on the Irony of the Court Striking Down the Legislative Veto
The irony here is that while the Court has stripped Congress of the ability to apply a legislative veto on executive actions when they diverge from what Congress says was its intent, the Court itself has increasingly taken on itself the right to overturn Presidential regulations and spending decisions.
The Court majority exerts this veto when it argues Congress did not mean to allow the President to act in a particular way, speaking on behalf of a Congress whose leadership has often vehemently disagreed with the Court’s interpretation of the statutes in question. So the Supreme Court has silenced Congress by blocking legislative vetoes but gets to speak in its name when a majority of the Court disagrees with Presidential policies.
As Biden fought Covid, the Court repeatedly vetoed regulations meant to stop its spread and protect workers, including blocking the vaccine mandate for large employers. It’s blocked Biden’s attempts to repeal Trump’s Title 42 anti-immigrant policies. And it looks likely to block his student debt relief policies.
All done in the name of curbing executive discretion, often on 5-4 votes, where the Court declared similar legislative review by Congress was unconstitutional.
A few decades ago, the Court had established some boundaries on its power, what was called “Chevron deference” in reference to the court case where the Court said they would defer to interpretations of the law by the executive branch unless those decisions were clearly in violation of the law. But that deference has been largely abandoned with recent Court decisions.
Since the Supreme Court has abrogated to itself the nearly sole authority to interpret Congressional statutes and to establish the institutional roles of Congress and the Presidency, it seems fitting that John Roberts and his merry crew of judicial dictators be required to sort through the mess of the debt limit.