The President should direct the Treasury Department to honor the nation's debt with or without Congressional action. As Laurence Tribe argues, Republicans would have no legal standing to challenge such an Order...
UPDATE 5/22/23: Biden can also agree to injunction compelling Treasury to honor debt...
By Ernest A. Canning on 5/15/2023, 10:35am PT  

President Biden has, at his disposal, a simple, yet elegant solution to the Republican-manufactured debt ceiling crisis/hostage-taking effort.

On a legal level, as Harvard's Constitutional law expert, Laurence Tribe, points out, Biden can avert an unprecedented and catastrophic U.S. Government default on its Congressionally-created debt by invoking a critical provision of the U.S. Constitution to order the Government to continue borrowing as needed in order to pay for spending that has already been incurred. On a practical level, he could do so by issuing a simple Executive Order directing Treasury Secretary Janet Yellen to honor the nation's debt, irrespective of whether or not Congress passes a bill to increase the debt ceiling.

The President and his administration, Tribe contends, are required to make Congressionally-mandated payments, even if doing so requires borrowing sums beyond the existing statutory limit.

In a recent New York Times Op-Ed, Tribe joined others who have long argued that Section 4 of the 14th Amendment provides that "the 'validity' of the public debt 'shall not be questioned' --- ever!" He spelled out, in no uncertain terms, that, "after passing the spending that created these debts in the first place", Congress does not have the power to "invoke an arbitrary dollar limit to force the do its bidding."

In the editorial, Tribe advised the President to remind Congress that he's "bound" by his Oath of Office "to prevent the country from defaulting on its debts."

In response to Tribe's advice, Biden, mentioning him by name, said he'd "been considering the 14th Amendment...but the problem would have to be litigated." He added: "In the meantime, without an extension, it would still end up in the same place."

Biden may have misunderstood the ramifications of Professor Tribe's analysis...

As Tribe explained last week on MSNBC in response to Biden's remarks, the President has "a duty to spend the money the Congress has directed him to spend even if that goes beyond the debt ceiling." The President does not have an obligation to seek either court or Congressional approval in order to fulfill that duty.

In hopes of avoiding market panic as Republicans in Congress otherwise continue their threat to crash the U.S. and global economies, Tribe noted in his Times op-ed the urgency for the President to make his position clear to Congress and the public as soon as possible...

As a practical matter, what that means is this: Mr. Biden must tell Congress in no uncertain terms --- and as soon as possible, before it's too late to avert a financial crisis --- that the United States will pay all its bills as they come due, even if the Treasury Department must borrow more than Congress has said it can.

The president should remind Congress and the nation, "I'm bound by my oath to preserve and protect the Constitution to prevent the country from defaulting on its debts for the first time in our entire history." Above all, the president should say with clarity, "My duty faithfully to execute the laws extends to all the spending laws Congress has enacted, laws that bind whoever sits in this office — laws that Congress enacted without worrying about the statute capping the amount we can borrow."

By taking that position, the president would not be usurping Congress's lawmaking power or its power of the purse. ... Mr. Biden would simply be doing his duty to "take care that the laws be faithfully executed" even if doing so leaves one law --- the borrowing limit first enacted in 1917 --- temporarily on the cutting room floor.

The quickest and most efficient way for the President to send that critical message to all parties would be by issuing an Executive Order directing Secretary Yellen to honor the federal debt, with or without a Congressionally approved increase in the debt ceiling. As Tribe made clear, Congressional Republicans would lack legal standing to challenge such an Order in federal court because they could not demonstrate how they suffered a redressable injury.

"This is not a situation in which anyone could file a lawsuit," Tribe contended. "They lack standing, and a plaintiff would, in essence, ask the President to violate the spending laws."

Keep in mind that Congress has not officially asked the President to accept a Hobson's choice between allowing the nation to be pushed off a financial cliff and allowing MAGA House Republicans to destroy the social safety net. The bill containing such a demand was recently passed only by the House and by the narrowest of margins (217 - 215). The deciding vote came from the disgraced, and now under indictment, Rep. George Santos (R-NY).

The 43 Republican Senators, who submitted a letter to Minority Leader Mitch McConnell (R-KY) opposing a clean bill to lift the debt ceiling, do not represent a majority in the Senate, let alone a veto-proof majority.

So there's no possibility that Congressional Republicans can claim institutional standing on behalf of the entire Congress. The invocation of the 14th Amendment via an Executive Order would not defy the will of Congress.

Even if there's a risk of litigation, that risk is well worth taking compared to the insanity of Republicans' extortion-like effort to force that Hobson's choice upon the Executive Branch of the U.S. Government when the current borrowing limit must be breached, sometime after the beginning of June, according to Yellen.

As President Bill Clinton observed, after his team researched the issue, he'd use the 14th Amendment "without hesitation, and force the courts to stop me."

Without any further delay, President Biden should issue the Executive Order in compliance with the duty imposed upon him by the 14th Amendment of the U.S. Constitution. This should be accompanied by a public announcement during which the President should display both certainty as to the legality of that Executive Order and a tone of righteous indignation towards the economic brinkmanship utilized by right-wing extremists that has the potential to wreak havoc in both the U.S. and global economies.

UPDATE 5/22/23: By way of a Motion [PDF] filed on May 19, in National Association of Government Employees v. Yellen, a request has been made that a federal court issue preliminary injunction that would compel Secretary Yellen and President Biden, in compliance with the 14th Amendment, to continue to borrow to pay the debt. This has opened up two possibilities: (1) Biden and Yellen via the Department of Justice, could advise the court that they do not oppose issuance of the injunction; or (2) Biden could issue the Executive Order and advise the court that the need for a preliminary injunction is moot.

The government employees have standing because they would be irreparably harmed by a default.

It should be noted that the lawsuit names only Biden and Yellen as parties defendants. If the court issued the injunction, Congressional Republicans would not be in a position to appeal a court ordered injunction unless the court granted a motion that permitted them to intervene as parties defendants. It's highly unlikely the court will allow Republicans to intervene because of their lack of standing.

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Ernest A. Canning is a retired attorney, author, and Vietnam Veteran (4th Infantry, Central Highlands 1968). He previously served as a Senior Advisor to Veterans For Bernie. Canning has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing

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