14th Amendment emerges as last-ditch fix to ward off default

[Yo_Mama_Been_Loggin]

Top political figures are swirling the possibility that President Biden could use the powers of a clause in the 14th Amendment as a last-ditch effort to ward off the looming threat that the U.S. could default on its debt as soon as next month.

When asked about possibility of invoking the amendment, President Biden as recently as Friday appeared to leave such an option on the table when he told MSNBC in an interview he had “not gotten there yet.”

But Treasury Secretary Janet Yellen on Sunday sounded the alarm, calling it a “constitutional crisis” should the president rely on the 14th Amendment, which obscurely addresses the nation’s debt in a way that legal scholars believe allows the president to continue issuing debts without lifting or suspending the ceiling.

“There is no way to protect our financial system in our economy, other than Congress doing its job and raising the debt ceiling and enabling us to pay our bills and we should not get to the point where we need to consider whether the President can go on issuing debt. This would be a constitutional crisis,” Yellen said on ABC’s “This Week.”

https://www.yahoo.com/news/14th-amendment-emerges-last-ditch-190039671.html

[Fiendish Thingy]

1. It's a constitutional crisis worth triggering IMO

Hopefully, it would kill the 1917 law, and either force SCOTUS to heel to the Constitution they swore to uphold, or completely erase any last vestiges of legitimacy of this court.

[onenote]

2. If the Court had to vote on the merits, they'd probably rule 9-0 against the use of the 14th.

I know that there are legal experts that think it can be used, as well as those that say it cannot. My take is that based simply on the plain language of the amendment, the stronger case is that it cannot.

The relevant language is found in Section 4 of the 14th amendment: "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. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void"

The purpose of the amendment was to prevent the repudiation of certain public debt as well as to prevent public debt being incurred for certain purposes.

The key word is "validity". Failing the raise the debt limit results in a default on certain obligations, but not the repudiation of them or a declaration that they are illegal and void, i.e., not valid debts. Put in more mundane terms, when one defaults on a home mortgage, the debt doesn't become null and void (or "invalid" ) and the home owner continues to owe the money; similarly, if you default on a car loan, the loan isn't declared invalid, it simply opens the owner to repossession (assuming the car is collateral on the loan ). Debts incurred by the US are not secured by typical collateral, but that doesn't change things. Credit card debt generally isn't secured by collateral, but if you fail to pay your credit card debt, it isn't rendered invalid -- it remains a valid debt that the credit card company can pursue.

I think the courts would look at this language of the 14th and distinguish defaulting on debts from repudiating them and declaring them unlawful. The FDR-era case that sometimes is cited is distinguishable because it involved an action repudiating a portion of a debt owed by the government (i.e., declaring it "invalid". )

[Fiendish Thingy]

4. But wouldn't a default effectively render US bonds "invalid"?

Bonds are a form of debt, and an intentional default would trigger a downgrading of US credit rating, rendering existing and future US bonds invalid.

Regardless, If SCOTUS were to rule against Biden using the 14th to continue paying debts, he should ignore the ruling and instruct Yellen to keep paying debts. SCOTUS has no enforcement mechanism outside of the Executive branch, and so this would be an historic neutering of a rogue court.

Biden should then welcome the impeachment hearings that would follow.

[Igel]

10. I could read it a bit differently.

Bonds must be paid.

Other, ongoing obligations, not so much. Depends on revenues. (With mandatory spending in the last 90 years becoming half the budget or so, that's a bit of a question, to be honest. But the US could, with difficulty, handle that with current revenues.)

Appropriations and borrowing authorization were different things for over 200 years.

[Fiendish Thingy]

11. So bonds must be paid, and a budget bill is a law authorizing expenditures

Biden is sworn to see that the laws are carried out.

Biden should order bonds sold to cover authorized expenditures.

[onenote]

12. Not as a legal concept. Again, think about common types of debt

Mortgages, car loans, credit cards. If you incur that debt and can't pay it, the debt isn't 'invalidated" or repudiated. It is defaulted on and remains a valid debt that can be pursued.

The reason the amendment uses "validity" was to address concerns that after the war, southern states might vote to repudiate the validity of debts created by the federal government to finance the war against the confederacy.

[Fiendish Thingy]

13. You're making the word "valid" do a lot of heavy lifting here.

Laurence Tribe, rather than splitting semantical hairs, has instead focused on the word “duty”, that is the president’s oath to uphold the constitution and see that the laws are faithfully executed. He said that, without action from congress, the budget, which the Supreme Court has ruled the president cannot cancel any congressionally authorized expenditures from, must be followed, even if that conflicts with debt ceiling restrictions.

Tribe says it is the least unconstitutional course of action, or “the lesser of two evils”.

[onenote]

14. Really? What do you think the plain meaning of validity is?

Are debts "invalid" when they're defaulted on? It would come as a big shock to lenders.

[Fiendish Thingy]

15. Defaulting would cause the markets to consider US bonds invalid, worthless

Can you point to anyone else who is focusing on the word “valid” as a rationale against Biden using the 14th to justify acting on the debt ceiling without congress?

You seem to be thinking of this in terms of mortgages or automobiles- if you default on those, the lender takes back the collateral on the still-valid debt.

If the US defaults, there is no collateral to repossess, and the markets would treat both current and future debt as either worthless or worth less, in essence declaring the debt wholly or partially “invalid” by the act of default. Sure, the bond holders could sue to try and collect, or just wait for the ceiling to be eventually lifted, but the damage would be done to the US credit rating and market confidence, AND the budget law authorizing the expenditures would be violated, and Biden would be violating his oath and duty.

Again, if you can provide a link to someone, anyone, who shares your perspective on the debt ceiling, 14th amendment, and the “validity” of US debt, I’d love to see it.

[onenote]

17. What happens when you default on your credit card?

What collateral backs up your credit card debt?

We'll probably never get a case that decides the question, but given the make up of the current supreme court, would you bet the mortgage (no pun intended) on a majority not taking an "originalist", "strict construction" approach?

[Fiendish Thingy]

19. If you don't pay your credit card, it gets cancelled

And nobody will give you another one.

In this case, the US is both the borrower and the lender/bank, so your metaphor doesn’t really fit.

Have you found anyone who agrees with your position regarding the constitutional meaning of “valid”?

Alito and Thomas would likely agree; but the bigger question will be if SCOTUS rules in agreement with your definition of “valid”, will Biden go along and allow the US to default, or will he ignore the ruling and instruct Yellen to keep issuing bonds and paying the bills?

[Fiendish Thingy]

21. Another point to consider

If Yellen keeps issuing bonds (debt) after the debt ceiling is reached, and after SCOTUS rules against using the 14th amendment to ignore the ceiling, is that debt, issued by the US government, considered “invalid”, thus violating the constitution?

[Deminpenn]

6. Not a lawyer, but unsure you're right

To me, this reads in two parts. 1 any debt issued by the US government is valid and therefore must be paid. Period.

Part 2 specifically addresses potential complications caused by the Civil War.

[brush]

9. How can they rule against what's in the Constitution?

And who can even take it to SCOTUS to dispute what the Constitution says?

Wouldn't that require a Constitutional amendment, not a SCOTUS decision?

[DemocraticPatriot]

25. Agreed!

Even though President Biden might likely be impeached over it, he would not be convicted--
and he would have protected the economic future of the whole country!


I think the backlash against the GQP over impeachment on this issue,
would be greater than that against the Republicans who impeached President Clinton!
(he did achieve gains in the midterm after that failed case!)


I think the right-wing majority of this court has already erased any vestige of legitimacy---
and that "jury nullification" by hung juries against any enforcement of anti-abortion laws
are morally justified,

and FURTHERMORE, that LYING in order to get on a jury in an anti-abortion case,
is ALSO morally justified!

(how did 3 or 4 SC Justices who made that decision get onto the court, except by lying ????
I think that makes it "entirely ok" for prospective jurors to declare
"I have no opinion on abortion" when the prosecution questions them--
and then vote to aquit, no matter what, and hang the damn juries.

[Buckeyeblue]

3. The question is this...would SCOTUS say we've set a precedent

By having congress approve debt ceiling increases? Or would they say all of those efforts was a waste of time because the constitution mandates payment?

I think congress would argue that while the constitution mandates payment, it's up to congress to decide how that payment happens.

[DemocraticPatriot]

26. Well, it was supposed to be the Courts who "set precedents", not congress---

but they already threw out court precedents when they killed "Roe"


Arguing that congress could set any legal precedents now would be incredibly hypocritical--
but nothing is beyond them, of course...

[Emile]

5. Since 1960

How many times has Congress lifted the debt ceiling?

Since 1960, Congress has acted 78 separate times to permanently raise, temporarily extend, or revise the definition of the debt limit – 49 times under Republican presidents and 29 times under Democratic presidents.

[Arazi]

7. Mint the coin and slap McCarthy's face on it

[IbogaProject]

8. Mint a bunch of high value coins

And if challenged cite the 14th Amendment and the Treasury's right to make coins.

[DemocraticPatriot]

16. The President has more troops than the Supreme Court.....

Last edited Tue May 9, 2023, 11:26 PM - Edit history (1)

so if it comes to a legal fight--- who the fuck cares ?


The Supreme Court has no means to enforce any illegitimate decisions which they might make.


(this was an observation made in the civil war era--
the Supreme Court may have issued the Dred Scot decision---
but all they had were "words"....

They commanded no troops.


(CORRECTION: the observation had nothing to do with the Dred Scot decision, but with President Lincoln's suspension of the right of habeus corpus during a rebellion--- sorry, complete brain fart there. See my later post
https://democraticunderground.com/?com=view_post&forum=1002&pid=17899744

[Silent3]

18. That would be a dangerous precedent

Perhaps not as dangerous in the short term as crashing the economy, but, long term, what if the Federal government, or some of the state governments, start taking that attitude toward good SCOTUS decisions that protect individual freedoms?

[Fiendish Thingy]

20. It is indeed dangerous, but a necessary constitutional crisis that should be triggered

We currently have a rogue court that needs to be reigned in.

[DemocraticPatriot]

24. Some very-red states, and red counties in blue states, are already taking the opinion that

they can nullify laws with which they don't agree... so what's the difference?


And, I don't expect for many "good SCOTUS decisions that protect individual freedoms" to be made for the next 20 or 30 years....

Please see my response to a previous poster here:
https://democraticunderground.com/?com=view_post&forum=1002&pid=17899744


My reference to "troops" was tongue-in-cheek, but it is never-the-less true---
neither the Supreme Court nor the Congress has such means to enforce bad decisions.... and I believe that the vast majority of the American people would stand behind President Biden, if he took actions which "some people" might argue were "not entirely legal", in order to prevent catastrophic economic consequences for our country and the entire world, especially over a matter which was always considered 'routine'--- except when one party has embraced fascism, and wants to hold the whole world hostage in order to pass their agenda....

(on the other hand, there are credible legal arguments for citing the 14th amendment as an argument that the whole 'debt limit' law was unconstitutional from the beginning--- and other arguments for creating the "trillion dollar coin" which would render everything moot--- the Treasury Department coins money, and serves under the executive, that is, the President of the United States.)


President Biden might likely be impeached for it, but he would not be convicted or removed---
and recall that President Clinton actually had gains in the mid-terms after his impeachment...


President Biden has not "lied under oath" in any court case,
nor has he been getting blow-jobs from interns---

If he gets impeached over his response to the debt-limit crisis,
I believe the back-lash against Republicans would be even greater than it was
over their impeachment of President Clinton...


President Reagan once said,
"We will not negotiate with terrorists"...
(although later it was shown that his administration made secret arms deals with them)


These Republicans in congress are no less than terrorists who threaten the economic lives of us all,
by refusing to do their duty under the ill-advised debt limit law...

At this point I will support the President in refusing to give in to terrorists,
and taking any "extra-ordinary action" which will avert a default,
whether it might be considered "completely legal" or not---

After all, Republicans have proven that they don't give a shit about "the law".
They want to re-install a rapist and fascist to the White House. Fuck 'em.

[onenote]

22. Inapt analogy

The Dred Scott decision effectively was overturned not by the military but by amendments to the Constitution. It took nearly 100 years for Congress and the courts to effectuate those amendments and when the federal government used the military, it was not to override federal court decisions, it was to force the hand of states that were ignoring court decisions.

I'm curious how you think it would work, given that the Constitution clearly states that Congress is given the power To borrow Money on the credit of the United States. Would Biden send troops into Congress to force them to issue more debt?

[DemocraticPatriot]

23. I applied that quote to the wrong case. I was not Dred Scot, it was Lincoln's suspension

of the right of habeus corpus during the early years of the rebellion that generated that line. Lincoln's suspension of that right helped to prevent the secession of the state of Maryland from the union-- whose pro-southern legislature had been headed in that direction, before Lincoln had many of the rebellious legislators arrested and held without charges for a time, thus preventing any such pro-secession vote. Of course the secession of Maryland would have been disastrous to the union cause, leaving DC completely surrounded by rebel territory.

The Chief Justice of the Supreme Court, Roger Taney, the same justice who wrote the Dred Scot decision, issued an order for Lincoln to release all such persons held without charges, i.e. "legally" overturning Lincoln's suspension of habeus corpus. President Lincoln ignored the decision.

It was then that some contemporary observed, 'Lincoln commands more troops than the Supreme Court'.

Sorry, when I said "Dred Scot" that was just a complete brain-fart, LOL. I know my history, but sometimes when the keyboard fingers get clacking, one might occasionally make an error...

My reference to "troops" in the current instance was a tad facetious-- but it remains true that the Supreme Court commands no troops while the President does. The Supreme Court has no powerful means of enforcing its decisions, except for the voluntary compliance of the rest of us.

Congress may be 'given the power to borrow money' but it is the US Treasury who pays the bills,
and the Treasury department serves under the orders of the executive, President Biden...

The Congress commands no troops, either....

In the extraordinary circumstances that the congress is unable to to raise the debt limit, I think that President Biden would be entirely justified, in order to protect the economy of the United States as well as the world, to declare that the "debt limit" law passed by congress during World War I, was in fact unconstitutional, and that the Treasury Department, under his command, will continue to pay the debts incurred by the United States, as mandated by the 14th amendment to the Constituion.

Of course there would be court challenges, but those would drag on for years. In the meantime, the Congress, under massive public pressure, would likely come through on their obligations.

If not, there is always that $Trillion dollar coin option.