Originally posted by The Hill
Debt ceiling negotiations are underway, with President Biden holding two aces up his sleeve. Australia, one of only a few other democracies with active debt ceiling laws, abolished it — and so should the U.S.
Biden’s Ace # 1
Because they jeopardize jobs and incomes and threaten government shutdowns, history documents that debt ceiling blackmail is treacherous ground for Republicans. It thrills wealthy donors but chills public opinion. Biden is likely to benefit politically in 2024 from their attempted extortion. The Republicans’ debt ceiling blackmail in 1995 and 1996, for instance, backfired with Clinton being reelected the following year in a landslide. It’s the same outcome as the other debt ceiling crises they have instigated since 2010.
In 2018, for instance, half of Americans eventually blamed Republicans for the economic turmoil, while only a third blamed Democrats. And in 2019 — during Trump’s border wall shutdown — 58 percent blamed Trump and the Republicans while 32 percent fingered Democrats. This consistent history is why their political advisors are urging congressional Republicans to abandon the blackmail entirely.
Ace # 2: Debt Ceiling Extortion is Unconstitutional
Biden’s second ace is that Republican debt ceiling threats are constitutionally infirm — plainly unconstitutional. He should instruct Treasury Secretary Janet Yellen to ignore that ceiling. And the ambitious, but increasingly unpopular, Republican Supreme Court justices will support Biden — unwilling to risk their project terraforming America with blowback when they create economic havoc.
From 1789 to 1917, debt ceiling laws did not exist. Specifying the national debt level was introduced only in 1917 when cumbersome wartime budget exigencies proved incompatible with infrequent Congressional sessions before air travel. It has persisted since through inertia — perfunctory tokenism with zero impact on the size of the national debt. The handful of exceptions resemble the current situation — grandstanding Congressional Republicans attempting to blackmail Democratic presidents. Embarrassingly, President Obama — unlike Clinton — acceded to some degree to Republican extortion demands,
Biden should not countenance extortion and should label debt ceiling threats as unconstitutional under the 14th Amendment. Enacted in 1868, Section 4 contains no equivocations, exceptions or caveats:
“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.”
Debt ceilings serve no purpose, and thus, are unknown in most other democracies. The lone exception is Denmark where it has never been a political issue. The only other democracy to ever adopt debt ceilings, Australia, experimented with them for 5 years before abandoning them a decade ago as nonsensical.
The U.S. should follow Australia’s lead, a course also justified by the legislative and judicial history of Section 4 (if you are an occasional originalist, pay close attention). In 1868, congressional intent — to prevent precisely the extortion threatened by Republicans today — was set forth by Senate President pro tempore Benjamin Wade (R-Ohio):
“I have no doubt that every man who has property in the public funds will feel safer when he sees that the national debt is withdrawn from the power of a Congress to repudiate it and placed under the guardianship of the Constitution than he would feel if it were left at loose ends and subject to the varying majorities which may arise in Congress.”
And the Supreme Court, in its only ruling on the issue, embraced that intent. Contemporary legal scholars going deep into the weeds agree. President Biden should embrace this history and use the present confrontation as an opportunity to abolish the debt ceiling. True, some opponents will appeal to the courts. But the disreputable Republican-majority Supreme Court will affirm Biden’s action — sidestepping global economic chaos in order to protect its pet peeve agenda. Let me explain.
An Imperial Supreme Court Prioritizing Pet Peeves
As noted elsewhere, today’s Republican Supreme Court has been documented as the first partisan one in American history. In addition, it has also been branded by legal scholars as the first imperial court — the Republican majority asserting broad supremacy over the executive branch. Relatively young, many experts expect them to spend glittering decades ahead wielding the Constitution as a cudgel against pet peeves like abortion, voting rights and clean air while protecting pay-to-play that elevates economic elites. Moreover, evidence has now surfaced that most of them have violated federal financial disclosure laws, yet refuse to explain questionable land deals and lush teaching gigs to Congress.
The Republican justices are aware they are viewed unfavorably, and thus, vulnerable to corralling under Article III, which grants Congress superiority over the Supreme Court. An energized Congress — provoked to act should the court induce economic turmoil — could expand the number of Supreme Court justices, for instance, or strip the court of jurisdiction – both steps taken in the past.
Biden Should Seize the Opportunity
Biden should respond to Republican debt ceiling extortion by pledging to keep the government open and the global economy humming — instructing Treasury Secretary Yellen to issue a rule to ignore the debt ceiling while concurrently seeking a declaratory judgment for that rule from the Federal District Court in the District of Columbia.
The history of debt ceiling blackmail is a harsh lesson for Congressional Republicans. And they may well soon learn another one: that sketchy Republican Supreme Court justices will not risk their expansive pet peeve agenda by turning a sow’s ear into a silk purse.