Below is a slightly modified version of my column in The Hill on the call of Democratic members for President Joe Biden to circumvent Congress and simply raise the debt limit unilaterally. It is more than a flawed constitutional theory. It is an abandonment of the core premise of our constitutional system that each branch would jealously protect its own institutional interests and powers. It is reminiscent of when Democrats applauded wildly when President Barack Obama told them that he was going to circumvent Congress entirely after it refused to approve his immigration and environmental legislation. They were applauding their own institutional obsolescence. I called it a constitutional tipping point and now Democrats are asking to be effectively stripped of their core power over the purse.
Here is the column:
Roughly 25 years ago, many of us were shocked by the discovery of a home full of bodies of dozens of people laying in bunk beds, wearing jumpsuits and identical black-and-white Nike Decade sneakers. They were the members of the Heaven’s Gate cult who, with their leader, drank a lethal mix of phenobarbital and vodka to gain entry to “Heaven’s Gate” with the passing Hale-Bopp comet.
Few of us could understand how rational people could believe their leader that it was necessary to shed their earthly bodies to gain access to an orbiting alien space craft. Few would buy such a pitch, but these people did. Some of the men even castrated themselves as a sign of their faith.
This week, Heaven’s Gate came to mind as I watched members of Congress line up to take a step that runs against every assumption of self-preservation in Madisonian democracy: They sought to make themselves nonentities. They called upon President Joe Biden to reject their very institutional existence, discard the separation of powers and unilaterally borrow and spend federal money.
At one event, Sen. Bernie Sanders (I-Vt.) released a letter to Biden on behalf of himself and nine Democratic senators “to urgently request that you prepare to exercise your authority under the 14th Amendment of the Constitution.” He was joined in this by Sens. Elizabeth Warren (D-Mass.), Jeff Merkley (D-Ore.) and Sheldon Whitehouse (D-R.I.), among others.
Obviously, these are not Nike-wearing cultists, but that only makes their actions all the more inexplicable. These are rational leaders whose desire to nullify their own existence would have seemed entirely implausible to the Framers.
A presidential “power of the purse,” however, is a fiction, only marginally more credible than the Hale-Bopp comet’s power to whisk human souls away into space.
Their argument for it is based on Section 4 of the 14th Amendment, which states, “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.”
The drafters of this amendment did not want Congress to simply dismiss its obligations to pay off the Union’s debts from the Civil War. Although the amendment is not limited to those debts, it has nothing to do with debt ceilings set by Congress. Default, after all, is not a denial of the validity of debt, but rather a refusal or failure to pay debts in time despite their validity.
Courts have long left it to the political branches to work out such differences in what is often a game of chicken with default. Moreover, as University of Virginia law professor Saikrishna Prakash recently pointed out, there is more than enough federal revenue coming in each month for Biden to avoid default by paying the interest on the debt under existing federal law. That may cause temporary problems for other spending priorities — acute problems, even — but it hardly rises to the level of a constitutional crisis.
Instead, these senators are suggesting that a president does not need congressional approval to borrow and spend trillions of dollars, even though the Constitution explicitly grants both of those powers to Congress alone. They also claim that, by demanding budget cuts as a condition of permitting further borrowing, the House is violating the 14th Amendment.
Of course, the Republican-controlled House views it differently. It has agreed to raise the debt ceiling if Biden reduces future spending. Keep in mind that the House was responding to a crippling deficit that increased by nearly $1 trillion in the first seven months of fiscal 2023.
The House was also responding to billions spent without congressional approval or support. That includes hundreds of billions in student debt forgiveness that Biden knew he could not get through Congress. Instead, he ordered it unilaterally.
So who is obstructing the payment of the debt? The White House could conceivably find a judge willing to intervene in a classic budget battle to give President Biden such unconstitutional authority, but it is unlikely to be sustained on appeal. And that may not matter. President Biden has previously taken actions that he admitted were unlikely to “pass constitutional muster” but believed “at a minimum, by the time it gets litigated, it will probably give some additional time while we’re getting [billions] out to people.” Yes, he said that publicly.
Biden is not the first president to disregard legislative authority. But these members of the legislative branch are beseeching their leader to ignore them and their constitutional authority. Indeed, the most important power given to Congress under Article I is the “power of the purse.” It was the ultimate control over government. Whatever entanglements or commitments a president may seek, he must ultimately get the Congress to go along.
George Mason captured that intent when he declared that “no branch of government should ever be able to combine the power of the sword with the power of the purse.”
This purported 14th Amendment loophole would reduce the separation of powers doctrine to junk bond status.
Barack Obama previously rejected this theory and said that Congress had to give him the authority to raise the debt limit.
Despite the contrary views of Obama and a host of constitutional law professors, President Biden appears emboldened by the idea. He recently made a public promise to Democrats that, while he was willing to negotiate with the Republicans, he would not agree to “anything of any consequence.”
Biden said that his support for this novel theory is a familiar name: Harvard Professor Laurence Tribe. When Biden announced that Tribe assured him of that he could act unilaterally, some of his White House counsel must have crawled into tight fetal positions.
It was Tribe who previously advised Biden that his Administration could reestablish an national eviction moratorium that the majority of the Supreme Court clearly viewed as unconstitutional. (It allowed the moratorium issued by the Centers for Disease Control and Prevention (CDC) to expire since it had only days left). Biden then cited Tribe in calling for CDC to reimpose the moratorium . Biden admitted that his White House counsel and their preferred legal experts told him that the move was likely unconstitutional. However, he listened to Tribe at the urging of then Speaker Nancy Pelosi. It was found to be unconstitutional for obvious reasons.
Madison believed that, despite party or ideological affiliations, “ambition must be made to counteract ambition.” He established a tripartite constitutional system where checks and balances would prevent the concentration of power in any one branch or in any one’s hands.
Whatever ambition is exhibited in this latest effort, it is far removed from the institutional interests that Madison hoped would prevail over partisan interests.
Yet members are lining up for this opportunity to gut Article I, negate their own power of the purse and create an effective government not only by one branch but by one man. It is a remarkable moment. They would be destroying Congress by their own hand — and Biden didn’t even have to give them new pairs of Nikes.
Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He testified as a witness expert in the House Judiciary Committee hearing during the impeachment inquiry of President Trump.