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.
To negotiate the debt ceiling is not to question the validity of the public debt; it does, in fact, validate debt. Immaterial since nowhere in the 14th is the president authorized to assume power of the purse. Just another case of Democrats trying to invalidate constitutional protections.
“These are rational leaders ….”
Objection: Stating as fact something not proven by evidence.
Professor, some of us might remember these matters:
1. In 10/10, WH Counsel Kathryn Ruemmler denied an GOP effort for access to internal WH communications that could show evidence of WH intervening to Energy Department’s ’09 decision to grant Obama campaign donor Solyndra company a $535 million loan guarantee.
2.Obama I Administration created the Consumer Financial Protection Bureau (CFPB), but as 44 Senate Republicans pushed for a decentralized structure of CFPB they blocked nomination. In 1/12, President Obama exercised his “constitutional authority” to appoint Richard Cordray to head CFPB while Congress was not in session, Senate Minority Leader Mitch McConnell (R-KY) assailed the “uncertain legal territory” of this presidential action:
3. Just months away from ’22 midterms, President Biden announced an unprecedented student loan forgiveness plan, that would provide up to $ 20K relief to millions of borrowers with government-held federal student loans In a relatively short period of time, Education Department had approved over 16 million borrowers until legal challenges halted the program before anyone actually received $$$. A SCOTUS ruling is expected within this session.
What legal consequences will occur when President Biden will exercise his “constitutional authority” under Section 4 of the 14th Amendment to raise the debt limit next week (other than outcry and columns)?
RE:” Although the amendment is not limited to those debts, it has nothing to do with debt ceilings set by Congress”…Interesting that comments by Mark Levin yesterday evening suggested that the amendment was precisely limited to those debts and had no other applications going forward. And you say………………?
As Mark Levin (who recently allowed former President Trump to talk about his “Letters” book – on the contrary of other hosts who let agree # 45 to their opinion) is supportive to America 1st agenda, he counts as a non-valeur within GOP establishment.
What many overlook, who refer to these heavy hitters as RINOs: They don’t care about “fundamental change”, they see their globalist agenda in jeopardy and consequently oppose Trump Doctrine (“Why Economic Security Is National Security”) [1] and MAGA grassroot movement, which started in 2008 as “Tea Party” (without a leader).
In short: RINOs/cocktail Republicans/Never Trumper brace themselves against transformation of GOP to a partes populi with an “unfit for office” plebeian leader (no “fundamental change”).
[1] https://trumpwhitehouse.archives.gov/articles/economic-security-national-security/
BIDEN BIG MISTAKE he LISTENS to Lawarence Tribe, Extreme Left Wing Legal Expert, who has many wild ideas and many that have failed in the courts. Then we have the Left Wing Radical Senators – Sanders Warren etal, along with the House Left Wing Radicals Biden still thinks he has reduced the Deficit which is growing?? ALL the DEMS know is one thing is SPEND – Both Republicans and DEMS need to sit down and come up with a plan that is FISCALLY SOUND, that is saying a lot. Wishful thinking. The Republicans favorite spending program is DEFENSE? This needs to be controlled. If Bidens does do the 14th amendment he will lose in the Supreme Court. Others have looked at this and its always thumbs down. But Biden relies on Larry Tribe crazy legal idea. Biden’s track record in the courts is terrible.
Make no mistake about about it: Republicans have plenty of flaws but Democrats have a love affair with authoritarian regimes.
Democrats want no responsibility for ANYTHING they do. Budget Defaults, Debt Ceilings, Open Borders, Nothing. The smooth talking little communist, Bill Ayers trained, Barack Obama showed them the way. Make it all the Republicans fault for having to make the necessary budget cuts due to their wild overspending. Thank you, Jonathan, for an excellent article.
If we had an honest bunch running the show, we would have a spreadsheet showing where all the money goes. It would blow our collective mind to see it.
Seems the Democrats are trying to turn the USA into a Banana Republic.
They have already done it with the weaponizing of the DOJ, the FBI, IRS etc.
Meanwhile the rest of the world is dumping the dollar and USTs and no one in DC is talking about it.
Biden is certainly dumb enough to try this. The question is whether the puppeteers and handlers are prepared to tell him to do it. Once done, it cannot be undone, unless he is immediately impeached.
bigger question…why are Democrats allowed to commit crime after crime with no punishments…beyond maybe being pushed out…to a $2 Million a year academic or non-profit shame job….McCabe, Comey, Strzok, stacey abrahams etc etc etc
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 above states that the national debt cannot be wiped away. How does one get from that text the idea that the President can unilaterally add to the debt? It is impossible. The Dems have taken the concept of a “living constitution” – already a dubious idea – to mean a liquid constitution.
Even if we were to assume negotiations on the debt ceiling equate to questioning the validity of debt – which is ridiculous in itself – nowhere in the 14th does it authorize the president to assume power of the purse.
The biggest threat to our American life is people like Michael Beschloss and Jon Meacham, two far left historians that have convinced Biden that he can be FDR and idiots of the left like Lawrence Tribe, a law professor who thinks anything a Dem president does is “legal”.
Who is guiding the leftist tilt of Biden? Who appoints people like the trans “Admiral” and the non-binary bald “woman” nuke thief?Who invited Dylan Mulvaney to the WH? Who opened the border? Who killed our energy? Who, who, who?
I’ll tell you who. Biden is surrounded by women of a particular orientation who are doing this. And once you understand who these women are, a lot of the gender based actions we see being pushed forward start to make sense.
Hullbobby, you’re letting your paranoia get the better of you. You might want to dial it back a bit.
tone it down, missy. some of us do this for a living and you are not helping my income potential
bug
LOL!! +100
Svelaz, a LEFTY LUNATIC, tells me to not be paranoid after telling us that Jan 6th was worse than 9/11 and Pearl Harbor, that the world will end in 8 years if we don’t follow some teenager from Sweden, that the Russians colluded with Trump, that the virus came from a bat, that Trump stole the election, that the FBI was honest, that Biden did nothing wrong in China and Ukraine, that boys are girls, that the border is open, that there is no crime wave in blue cities and item after item after item.
Svelaz, keep defending Biden, you will be the last loser on the island in about 2 months.
Hullbobby,
“Svelaz, a LEFTY LUNATIC, tells me to not be paranoid after telling us that Jan 6th was worse than 9/11 and Pearl Harbor…”
Huh, nope. I’ve never said that. But your need to lie about something like that is not a surprise. You doubled down on the paranoia for sure. Dude, chill. Did you already pile sandbags in on your porch because of the dire situation you see yourself in?
Those who take themselves and other things too seriously are rich targets for ridicule.
Turley is not being honest with its readers. He’s clearly using this option to criticize Biden. He’s not seriously considering it, even he is skeptical of the theory. Turley doesn’t tell you that because it doesn’t make Biden look bad and that seems to be her goal. Make Biden look bad.
From the AP,
“WASHINGTON (AP) — If the fight with Congress over raising the government’s debt limit is such a dire threat, why doesn’t President Joe Biden just raise the borrowing ceiling himself? It’s theoretically possible, but he’s skeptical.”
https://apnews.com/article/14th-amendment-biden-debt-ceiling-explained-92ebc0db703d49eab2c91d4d4a354cdf
What is weird is that Turley using his heavens gate analogy he described precisely what the republicans are doing. It’s notable that he didn’t mention the real culprit of the problem. The republican controlled house. They are the ones using the debt ceiling as a means to ram thru their preferred budget ideas without needing to deal with the senate.
Republicans gladly raised the debt ceiling twice when trump was spending in the trillions. Now that he’s not in office it’s an issue?
Republicans know they have the thinnest possible majority, so thin that they can’t afford to expel rep. Santos who has been indicted on multiple felonies.
If a default does occur republicans will bear the brunt of the blame. They control the power of the purse. President Biden really doesn’t have to do anything other than sign their choice. This is going to blow up on republican’s faces. McCarthy does not have any real leverage and Biden knows it.
Svelaz, How much do They pay You?
He gets a nickel for every post.
If he got a nickel for every post he would be overpaid.
Just Curious, millions! Hahaha!!!
🤦♂️
Your response seems to be a Non-Denial Denial.
None the less I suspect that Svelaz’ Me|Myself|and I have Unionized and the question of Their Pay Rate is better left to the Union Stewart, though it does raise the question bearing Your patronage, as to if you are Soviet-Unionised or American-Unionized, and if You are a Triple-Dipper, and how many times You Vote in a Single Election.
And finally is the Effort worth it to You|Yourself|and I [ret.].
If I am remiss I yield to you Sirs.
it depends what the going rate is for a bag of crystal meth on any given day. In the case of Svelaz, his handlers cut it with talc, and with bug, they throw in crushed glass
then again, we are all bug, Svelaz, Gigi and Bitter lefty Anonymous
I don’t have handlers. I’m a free agent, just like you. Like everyone here. You’re just jealous that you can’t make a good argument and just have insults and ad hominem to offer.
Biden said he believes he has the authority under the 14th amendment to ignore the debt limit. This is absurd.
The 14th amendment says that the “validity” of the federal debt may not be questioned. That means it may not be repudiated. A default is different from a repudiation. Following a default, the debt remains valid and still due and owing by the debtor. To question the “validity” of the debt is to question whether it was ever or remains due and owing.
Moreover, it is Congress under Article 1 not the executive under Article 2 which has the power to authorise borrowing.
Sooooo, why do they need Biden? They literally have the power to avoid default anytime.
They are threatening economic harm so they can get what they want. They can’t pass the cuts they wave because their ultra slim majority won’t give them the votes and there are republicans who don’t have the same idea of what to cut. So the minority “freedom” caucus, the nut jobs, are literally blackmailing the nation into meeting their demands which can’t be met using regular order. McCarthy has no leverage at all. He can be booted out by a single nut job from the “freedom” caucus or he can default and harm the whole country.
Turley’s analogy would be a better fit for the “freedom” caucus. Than the Biden administration.
“Biden said he believes he has the authority under the 14th amendment to ignore the debt limit. This is absurd.”
He didn’t say that. He’s actually skeptical of the theory. But mentioning that would undermine Turley’s narrative of making Biden look bad.
youre not sticking to our talking points for today. Did the Big Guy give you permission or just an extra crack pipe?
bug
You are wrong. He said explicitly that he believes he has the authority but that the courts would likely stay his action pending resolution so he would not be able to avoid a default. His point was that he has the authority but that there is not enough time to exercise it effectively because of temporary court intervention.
“Harvard Professor Laurence Tribe.”
The shill for an Imperial Presidency — when it’s the D’s man in office. This, yet again, is power lust as a desire, which rationalizes any means necessary.
How ironic that Democrats constantly whine about how Republicans are a danger to democracy — as they themselves systematically dismantle ever shred of democracy we have left. Biden is a bully and a totalitarian, and the Democrats who feed his power hunger are charlatans. It’s just too bad that half the American people are either too stupid, too craven, or too disinterested to vote these fascists out of office. Their motto, By any means necessary, is the real threat to democracy.
All part of their “long march” leading to socialist revolution:
https://en.wikipedia.org/wiki/Long_march_through_the_institutions
More proof the Left wants to burn it all down. Checks and balances get in the way of a left-wing dictatorship, so of course the Left wants to do away with checks and balances.
Also, what happened to Larry Tribe? He used to be respected on constitutional matters, now he’s a joke.
Upstatefarmer, the left? Republicans control the house. They are responsible for raising the debt ceiling. Not the president. Turley just argued that the president does NOT have the power to raise the debt ceiling. It’s republicans who are holding the nation hostage over their demands. Demands they can’t do on their own thru regular order. Biden won’t be blamed if we default. Republicans will. Because they are the ones solely responsible for doing it. Biden just signs the legislation into law.
That is what a Democrat operative would say. The House passed a bill, did you not know that?
They passed a bill knowing it won’t pass thru the senate. It barely passed thru the house. They added a lot of BS and put in an excuse to do it again in the middle of an election. Which is why a lot of republicans balked at it. They were pressured to tow the party line instead of exercising their own conscious. It passed by a razor thin margin. That is not a vote of confidence in the legislation even by republican standards.
“The 2023 Limit, Save and Grow Act would slash discretionary spending at domestic agencies to its fiscal 2022 levels, leading to significant reductions of more than 20% in fiscal 2024. It would also cap annual spending growth to just 1% for the next decade. The bill would increase the debt ceiling by $1.5 trillion or suspend it until March 31, 2024 if the government did not hit the new limit by that time.
The measure passed in a party-line vote after Republican leadership struggled to minimize its defections since it released the bill text last week. In the end, just four Republicans opposed it and the legislation passed in a narrow 217-215 vote. While the bill is not expected to get approval in the Senate and President Biden said he would veto it, its passage marks an attempt to ramp up pressure on the White House to commence negotiations over what the administration will concede to avoid a debt default this summer. ”
What they passed is unworkable and unrealistic. It’s loaded with goodies only the “freedom” caucus nut jobs want. Republicans don’t have any leverage still. They want Biden to sign on to their BS to GAIN leverage over the senate. Which is in itself a pretty stupid strategy. That’s why Biden doesn’t have anything to lose. If we default it will be because of the republicans unrealistic demands pushed by the nut job caucus that has McCarthy by the cojones with the threat of removal by a single member.
Democrats are about 70% completed in their goal to make elections meaningless. They are feeling, electorally immortal. The Dems are of course ecstatic bout this. The GOPe is silent, falsely feeling like the Dems will continue to allow them at the table, continuing to collect their allotted grift. Failing to understand, they, are only toward the bottom of the list of entities to be cancelled
Elections are supposed to be meaningless!! If elections have consequences, then they assemble mutable government. The composition, distribution of power through rights of suffrage, and function of government is specified in the constitution before the government is assembled by electoral processes.
By the way, there are only two constitutionally established electoral processes; consensus choice for all higher offices, President, Vice President (President of the Senate), and Senators, and statistical which forms the Most Numerous Legislative Branch by the republican principle; per capita apportionment based upon an enumeration, a census, and must be an exact representation of the population, state and federal, a.k.a. The People in their Collective Capacity!
There are only two purposes for voting, either as a legislative assistant or to form a legislative assembly. When all the people are assembled and vote to reach a majority consensus of all the people, that constitutes a democracy, when the people vote to form a legislative assembly, that constitutes a Republican Form of Government, and the requirements for quorum to operate and majority consensus of all the people must be complied with in both instances!
President Obama started this stuff of enacting unconstitutional laws/orders using his pen-and-phone strategy and letting it percolate through the courts for years until the law caught up with him. By then, the damage was done. To know that something is unconstitutional and still proceed to implement it should be an an impeachable act for a US President. We are living in interesting times as we watch the suicide of a superpower.
There is absolutely no reason for the debt ceiling or to try to figure out how to pay our debts or to default on any of our debts!!
The States as the Union already agreed on how to determine our debts and how those debts are to be paid.
All you constitutional scholars should know that all those decisions are governed by Article 1 Section 2 Clause 3, where the States agreed to pay their share of all the debts they themselves created and approved, but as I have often said, it’s impossible to understand the Constitution of the United States without first understanding the Articles of Confederation.
[Article VIII. All charges of war, and all other expenses that shall be incurred for the common defence or general welfare, and allowed by the united states in congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several states, in proportion to the value of all land within each state, granted to or surveyed for any Person, as such land and the buildings and improvements thereon shall be estimated, according to such mode as the united states, in congress assembled, shall, from time to time, direct and appoint. The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several states within the time agreed upon by the united states in congress assembled.]
This was changed to a per capita apportionment based upon an enumeration, a census, to make the apportionment more equitable and to eliminate cheating by the States in their valuation of the forms of each State’s property.
As a matter of fact this balance; “No taxation without representation” was the only part of the Articles of Confederation that was amended, when they added a republican form of government they apportioned representation, suffrage, and direct taxes to each State proportionally based upon each State’s proportion of the aggregate population of the country.
The States must always comply with this agreement which means that the States must agree on all debts and must immediately pay their share of those debts, no discussion or further agreement necessary.
Come on people, we can’t interpret and circumvent the Constitution of the United States which is the Supreme law of the land!!!!
By the way, the President has absolutely no power or authority to make any legislative decision, the role of the executive is to implement legislative decisions not to make legislative decisions which are vested in a congress consisting of a Senate and a House of Representatives, and for all you constitutional geniuses, that is Article 1 Section 1 of the Constitution of the United States which empowers the assembly, the united States, in congress assembled, the Union, as the Established Government Authority!
The Articles of Confederation were not subsumed, they were rejected.
Really, where in the Constitution of the United States does it say that! The Articles of Confederation were amended by the Constitution of the United States! But why does it bother you that what was amended was the apportionment and assessment of taxes on the States to pay the debts of the Union.
You are stretching if you can’t see what was amended, especially when I cited it in my argument.
And you are ignorant if you cannot evaluate and comprehend what you read.
I love you people, you say the Articles of Confederation were replaced, but you can’t find anywhere where it makes that claim, especially not in the Constitution of the United States, and what’s more, the Constitution of the United States was written in accordance with Article 13 of the Articles of Confederation.
betuadollar, that is so simplistic, it touches being wrong.
Without understanding the articles of confederation, you will never understand the Constitution.
Your comment appears to ignore the nation is a Coalition of States. Not people.
3 to 4 generation of settlers operated quite well absent a centralized Government Structure. They were very happy with this new freedom FROM a central government, they were living in the colonies. But like all things, growth a change created new needs, the Articles of Confederation was an attempt to answer those needs.
I.M.O.: The move by the Democrats is a Dangerous edification of the Constitution. A Coup type move.