As we come closer to the X-date when the U.S. Treasury can no longer rely on accounting gimmicks to forestall the need to issue new debt in order to satisfy our country’s financial obligations, the stalemate between President Joe Biden and House Republicans to raise the debt limit shows little sign of progress. While some are attempting to paint any talk of Biden bypassing the debt ceiling as “dangerous nonsense,” the reality is that he has numerous legal advantages should he pursue such a path. Biden’s legal hand is so strong that he ought to break off negations with House Republicans and break the impasse through unilateral executive action.
The primary legal argument being eyed for Biden to issue new debt is the 14th Amendment, which contains a clause stating that, “The validity of the public debt of the United States, authorized by law … shall not be questioned.” Rather than work through the merits of this argument as so many are frantically doing at the moment, shockingly little attention has been paid to what is known as the “political question” doctrine, one which may well prove pivotal should Biden decide to act unilaterally in this way.
The political question doctrine is a means by which courts eschew consideration of a case on the grounds that the resolution of the matter is best left to the political branches to sort out for themselves. Of the several considerations the Court said merit invoking it include, “An unusual need for unquestioning adherence to a political decision already made.” A case that might require the court to overturn the president’s “already made” decision to issue debt would clearly qualify as an instance in which we have an “unusual need” to not question the action given that doing so would potentially lead to economic calamity.
In short, there is a high probability that the Supreme Court would not even weigh in on the 14th Amendment argument at all if they were asked to intervene. They might instead choose to wash their hands of it and not risk a decision that could simultaneously destroy both their legitimacy and the economy. The Court invoking this strategy would be a de facto win for the Biden administration, one in which they need neither bless nor condemn his behavior.
There is also the under-appreciated possibility that the court could issue a decision that resolves the matter in favor of Biden in a way where they need not actually examine the merits of his argument that the 14th Amendment empowers him to issue debt in excess of the debt ceiling. The Court could reason that Congress already effectively raised the debt ceiling by way of authorizing spending that exceeded revenue.
The Supreme Court would undoubtedly have to recognize that Congress passed a law that disallows debt beyond $31.4 trillion to be issued, but it also could point out that the same legislature later passed laws authorizing spending that could only occur if said debt ceiling was raised. This would put the Court in the position where they must recognize that these laws were both validly passed but that, as a practical matter, they cannot be reconciled. Either the debt ceiling or the spending bills are valid.
When laws collide in this way, judicial deference is often given to those passed most recently through the understanding that a past legislature cannot bind a future one. Legislatures are allowed to change their minds over time. Under this reasoning, the Court could decide that because spending bills were passed after the debt ceiling was raised, the debt ceiling itself is moot from a legal perspective.
There are also political considerations that justify Biden acting unilaterally to end the debt ceiling standoff. Consider how Speaker Kevin McCarthy commands a raucous and undisciplined majority, one that only reluctantly awarded him the speakership after 15 rounds of voting. McCarthy is simply too weak a speaker to push through any debt limit bill that demands his caucus to compromise. Negotiating with McCarthy is bound to be a fruitless endeavor, and to the extent it occurs, only justifies the hostage taking mentality Republicans embraced in these talks. The nation as a whole will be better served if Biden simply walks away and solves the problem himself.
Nicholas Creel is an assistant professor of business law at Georgia College & State University.
The views expressed in this article are the writer’s own.
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