I’ve seen various accounts of what was discussed or set forth as positions in yesterday’s meeting between President Biden and congressional leaders. So I don’t feel like I know what was discussed. But after the meeting President Biden said that while he’s been “considering the 14th Amendment” approach he’s wary because of the length of time the issue would take to litigate. He seemed to suggest that process would be too lengthy to resolve the current standoff.
I guess it’s good that he’s considering the 14th. But this answer is not only wrong and self-defeating, it suggests the White House simply isn’t in shape for this fight. Indeed, if this is where we’re at it suggests an attitude toward the courts and the broader political context which seems hopelessly stuck in the past.
Let’s walk through this.
We can treat it as settled doctrine that the six Republican appointees to the Supreme Court will look for every opportunity to stymie and politically harm a Democratic president. The question is simply how much they’ll upend existing law to do it. In most cases, the answer is a lot.
But there are still limits, at least for some of them.
The debt limit standoff is distinct inasmuch as the repercussions of the Court shooting down an administration action are vast and immediate and, unlike abortion, cut across normal party lines. Tanking the economy hits everyone, even if it’s a political reverse for the Democratic President.
Any use of the 14th Amendment has to operate with the assumption that the President will take the step, essentially dare the Supreme Court to stop him, and that they will decline to do so. They might quickly turn down a lawsuit against his action on the merits. They might sidestep it by finding the whole question non-justiciable. In theory they could allow the action to continue while it’s being litigated on some normal schedule. But it’s hard to see how that’s workable since that amounts to continuing to issue debt while the Court decides whether those new debt issues are legal.
What it all comes down to is that there’s no time to litigate it. And that’s precisely the point. Continue to raise revenue with bonds — as the Congress intended when it passed the budget — and let the Supreme Court decide whether it wants to step in and delay everyone’s Social Security checks or whatever else isn’t going to get paid.
Is the Supreme Court ready to take on that responsibility? I doubt it. But we’ll see.
If you start out leaving it to the Court to decide whether it wants to slow roll the question for months or a year or more and you decide not to act in advance then you’re just making yourself a chump. There’s hardly a point since you’ve surrendered in advance. Maybe Biden said this because they’ve got an alternative plan like prioritization or consol bonds or something else. If this something needs to be clarified I certainly hope they do so in short order. But on its face this sounds like they’re not up to this fight.
