Unlike the by-and-large ethnically constituted states of the “Old World,” the America of the “New World” is a covenant. Indeed it is a covenant of covenants.
The overarching covenant is our Constitution, a written document that must be “operationalized” in myriad ways through the centuries of our shared public life as a unified federal republic – a res publica, a thing of the public (e pluribus, unum) – persisting through time. A document that is accordingly by turns broadly and narrowly written so as both to set certain foundational “rock solid” precepts “in stone,” on the one hand, and to state principles meant to inform ever-developing national policy choices on the other hand.
Among the foundational precepts is the Debt Clause 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.” Note in particular those phrases “public debt of the United States,” and “payment of pensions.” I’ll come back them.
Among the covenants that subsist within that overarching covenant which is our Constitution are the modes of our public budgeting, the federal budget being, each year, our national “plan” for the year ahead – the things that we as “We” shall be doing, and hence the ways we’ll finance them. For in a monetary exchange economy such as ours, the public to command resources and enable activity must act partly by spending, and partly by “funding” that spending.
The federal budgeting process being one of our sacred covenants as a nation – as a nation, one nation – we naturally have prescribed in detail just how that process shall proceed. On the ground of both Articles I and II which prescribe the forms of our legislative and executive organs, respectively, we have developed both (a) a detailed executive and (b) a detailed legislative process, the products of these parallel processes then to be collated in what we call, come October each year, not “the presidential” or “the congressional” budget, but the federal budget – the “game plan,” as it were, of our republic for the coming fiscal year.
These processes are enshrined in our Presidential Budget and Accounting Act of 1921, source of our President’s Office of Management and Budget (“OMB”) and the annual development of economic projections and anticipated funding needs that it oversees, and our Congressional Budget and Impoundment Control Act of 1974, source of our Congress’s Congressional Budget Office (“CBO”) and the annual development of program authorizations and associated funding appropriations that it oversees. The latter, of course, include both “entitlements,” themselves perpetual covenants, as the term suggests, between Us as a people and those of us – in particular, our elderly and our veterans – for whom we maintain these programs, and “discretionary” spending, some of which – notably military spending – themselves function as de facto entitlement.
None of the covenants or covenants-within-covenants just rehearsed are mere “tools” or “options” hidden in some “bag of tricks” that a lawyer might “wield” or “deploy” in some lawsuit in a court. They are, rather, abiding frameworks that We, the People have prescribed for how we, as We, shall “do business.” They are foundational “ground rules” for how we shall get on every year as a people who have things to do, as a People, in order to enable ourselves as separate people – families, individuals, associations (including business associations), etc. – to flourish as best as we all can in a world beset with uncertainties.
In light of this all-embracing purpose, in light of this sacred covenant, it is a constitutional and political anathema when anyone charged with the duties of public office endeavors to make these frameworks themselves matters of uncertainty – matters that add to, rather than buffer against or enable the rational management or navigation of, the myriad vicissitudes of ever fragile and hence all the more sacred human life.
And yet this is precisely what a rump faction of neo-secessionist members of what once was an august and dignified political party – the party of Abraham Lincoln, no less – have been attempting again and again for the past 28 years. It began with the neo-secessionist Newt Gingrich in 1995, plateaued during the White House’s “Babylonian Captivity” by a serial bankrupt and perennially lawbreaking would-be “president for life” or Louis IV (“l’etat c’est moi”), and now continues atop that plateau at the hands of a few outright secessionists in but one caucus of but one chamber of our bicameral Congress.
How should the President, how should the overwhelmingly greater part of our Congress – how should We, the People – regard this? And what should we do about it?
President Biden is often said to admire his predecessors FDR and JFK. So do large numbers of Congressmembers, jurists, and other public officials and functionaries. Of course they do – vast majorities of other Americans admire them too. But the time has now come for the President, all loyal Members of Congress, all prospective judges and juries that might see new litigation around the “debt ceiling” nonsense now be pushed by some MAGA
In multiple opinion pieces in recent weeks, Professor Tribe and I have jointly and severally urged that Congress and President Biden disregard the legally moribund “debt ceiling” that a rump faction of neo-secessionist MAGA Republicans in but one House of Congress now threaten to misuse. To date we and like-minded colleagues have treated this largely as a “legal problem,” as if developing in outline a “brief” to be filed “in court.” Of course we and many gifted professorial colleagues are talking about law here, but we are also talking about what our law is for – the structuring and maintaining of the republic that embodies our national covenants.
And so as I proceed in what follows I’ll not simply be mapping a “legal strategy.” I will be mapping a posture, an attitude, and a stance as well – a stance that can be given official embodiment in the form of a Presidential Executive Order, affirmed by the Senate and all responsible Members of the House, to the effect that the false “debt ceiling” is being set aside in the name of the multitude of constitutional and statutory provisions I systematically elaborate below and the covenants I referenced above.
Think of it as a Lincolnian Civil Wartime “Debt-Emancipation Proclamation” or suspension of habeas corpus as described below if you like. The President and all responsible Members of Congress can and should give this the form of one of the Congress’s and President Lincoln’s Civil War Proclamations, more on which below. In so doing Congress and the President can galvanize all Americans to recommit themselves to our republic – “for which [our law] stands.”
Off, then, to the races …
I referred just above to a “hostage-taking,” a unlawful threat. What the tiny House MAGA minority threatens by holding both the President and vast majorities of both houses of Congress hostage to a superseded statutory provision – literally one vestigial subsection of one section of one subchapter of one chapter of one title of the US Code – cannot longer be doubted. The threat is to confront both the president and vast bipartisan majorities in both the House and the Senate with a legally intolerable “Sophie’s Choice.” This is not merely a choice between two grotesque and painful options. The choice into which the hostage-takers would now box the president and all of the republic is a choice between two manifestly unacceptable sets of violations of our national covenant – a covenant that, as I laid out above, is by turns constitutional, legislatively budgetary, and political.
First let me state clearly the dilemma with which the House’s rump faction of secessionist Republicans is effectively trying to box us all in. It is demanding we take at least one of the following two impossible and indeed national faith-breaking courses:
We must right now, they demand, in the midst of a still-fragile and incomplete post-pandemic recovery, throw literally millions of Americans out of work and the national economy into a deep recession threatening to rival that of 2009 if not that of the 1930s. This we must do by abruptly and arbitrarily slashing most if not all of the projected next federal budget by nearly a quarter or over one half in comparison to the present year’s budget – at least as their demands currently stand. This the secessionist MAGA Republicans know they cannot secure through the ordinary legislative process now underway in preparing the FY 2024 budget for October. So they’re using the customary tactic of those who can’t “get their way” legitimately – they’re taking hostages.
In the alternative, the MAGA gang now effectively say, we must bring on the an even greater economic and social calamity by outright defaulting on our national debt. This they – and their orange would-be “president for life,” the serial bankrupt who is himself now publicly demanding default from the sidelines – would have us do by unlawfully ignoring (a) scores of millions of contractual creditors of the United States, by far most of them American citizens; (b) the beneficiaries of others of our sacrosanct national covenants, notably Social Security pensioners and veterans; (c) the currently operative budget legislation passed by Congress itself and then signed into law by the president late last year; (d) the aforementioned Presidential and Congressional Budget Acts of 1921 and 1974, respectively, which do not countenance extortion or default upon the nation’s sacred obligations; and hence also (e) the “Take Care” Clause, the “Presentment” Clause, and the 14th Amendment “Debt Clause” of the Constitution – itself reinforced by 31 USC §3123 – which respectively prohibit both the President and all other public officials, including all Members of Congress, from ignoring budget provisions, “prioritizing” budgeted payments, and defaulting on US obligations.
Neither of the putative options with which the rump MAGA faction of the House Republican Caucus confront us, then, seem likely actually to be seriously intended – the insurrectionist Republicans are, as the old saying goes, “crazy, not stupid.” They have to know that no pair of putative alternatives each of which means both constitutional incoherence and political-economic disaster is a bona fide choice. And so this has to be precisely the neo-secessionist Republican minority’s object: It is either quite literally to damage our federal union from within just as their secessionist forebears in the 1860s tried and failed to destroy it from without, or it is to hold out that prospect to operate as a bargaining ploy in strong-arming what, again, they cannot secure from their colleagues in the Congress or the President through the ordinary Congressional and Presidential budgeting process.
President Biden, Congressional Democrats, the overwhelming majority of patriotic Congressional Republicans, and all of us who believe in our national project must obviously rebuff this false choice, must refuse to take the MAGA-laid bait. We have no legitimate, lawful choice but to reject, overtly and forthrightly, this “Catch 22 ” – this impossible dilemma that one MAGA apologist bizarrely downplays by saying our creditors still would have “IOUs” (try feeding those to your family).
All responsible patriots must accordingly call out the current secessionist gambit, be it sincere or a bluff, as precisely what it is – an attempt to accomplish through budgetary hostage-taking at best what ordinary budgeting and our Constitution will not, or at worst what the January 6th insurrectionists failed to achieve by invading the US Capitol and their Confederate forebears by attacking Fort Sumter. In this case, that is presumably chaos by 2024 to assist their twice-impeached dictator-in-waiting to retake the White House and thereby end our democratic covenant – which surprising numbers of this faction now quite overtly repudiate in public. And we must publicly rebuff the attempted coup accordingly.
The matter before us is not simply a question, absurd as it would be, of preventing a rump MAGA minority’s securing, by unlawfully holding compliance with last year’s budget law hostage, what they cannot get into next year’s budget law through ordinary legally-prescribed democratic give-and-take with their House and Senate colleagues along with the President. It is rather a question of preserving normal governance itself, as prescribed by our constitution and laws, which after the last seven years’ stresses simply cannot survive a collapse of the dollar and the $24 trillion Treasury market, a collapse of literally scores of millions of Americans’ Social Security pensions and 401Ks, and a collapse of both its and the world’s economies in manners not seen since 2009, if not indeed during the interwar 1930s.
And this takes us straight on to President Lincoln, the Civil War Congress, the loyal citizenry, and the insurrection-wrought conundrums with which they had to contend. For these, too, involved a conflict between the application of one apparent law with virtually all other truly applicable laws, thereby necessitating a poignant exercise of what Professor Tribe long ago dubbed, in resonance with the classical Greek notion of a “tragic choice,” a fateful “Constitutional Choice.”
Start with Lincoln’s and the Civil War Congress’s conundrum, which necessitated a much more difficult disregard of one law in conflict with all other law than does what I am urging.
From the first month of the Civil War in 1861 until early 1863, Lincoln and Congress were faced with a terrible quandary. Secessionists in Confederate-bordering states like Maryland and Kentucky were unlawfully occupying government buildings, unlawfully wresting control of legislative bodies, and unlawfully obstructing Union recruitment efforts and related rebellion-suppressing measures. Clearly this had to be stopped if the Confederate insurrection was to be successfully put down. But the usual legal devices for doing so had themselves been unlawfully commandeered by secessionists.
Lincoln as Commander in Chief thus had to authorize Union personnel to arrest and detain insurrectionist culprits. This in turn required, however, that Lincoln suspend the writ of habeas corpus, a prerogative that Article I, Section 9 of the Constitution vouchsafes to Congress. (Congress itself subsequently ratified Lincoln’s suspension of the writ via the Habeas Corpus Suspension Act, which Lincoln signed into law two years after his March 1861 inauguration.)
Supreme Court Chief Justice Roger Taney – he of the infamous Dred Scott decision returning escaped slaves to their “masters” and holding that Black Americans, even freed slaves, bore no rights that White Americans had to respect, even that to citizenship – accordingly held Lincoln’s action to be ultra vires, in excess of his authority. Lincoln and Union officials then disregarded Taney’s decision, the President later famously querying, in Taney’s presence during a July 4th address, “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one [law] be violated?”
Few people today, I would wager, doubt that President Lincoln, then Congress, “did the right thing.” The Constitution, after all, “isn’t a suicide pact” – quite the contrary – and no application of one law can plausibly be viewed as permitted to trump all other applicable law, let alone the entire basis of all laws of our republic – viz. our constitutionally instituted federal government itself. And happily, the act of Lincolnian statesmanship that many of us now urge upon President Biden, the Congress, and all other loyal Americans occasions no “tragic choice” anywhere near as poignant as that which confronted Abe Lincoln and the Civil War Congress during our last secessionist crisis.
It happens that, much more straightforwardly than in Lincoln’s, Congress’s, and the loyal citizenry’s Civil War case, there is an obvious means by which President Biden and Congress can sidestep our current secessionists’ deliberately laid trap. It is to ignore the current rump faction of neo-secessionist House MAGA Republicans’ bluffingly threatened misapplication of the 1917 “debt ceiling,” on the grounds (a) that it is both no longer operative and contrary to literally all other applicable law, and (b) even compliance with the MAGA threat would bring national default.
The course that I urge is, in other words, for all of us as a nation to treat the MAGA faction’s bluffingly threatened misapplication of the 1917 Liberty Bond Act as the unlawful use of an old and since-superseded budgetary provision that it would be, then proceed budgeting for next year, and continuing to pay on the already legally incurred debt obligations of last year, in the customary manner. And I urge the President to issue a Lincolnian Proclamation, in the form of an Executive Order, to this effect. Then the Senate and all sane Members of the House, be they Republican, Democrat, or Independent, must publicly endorse the “Proclamation.” This will be no more necessarily “controversial” than simply to continue to do that which has always been done literally every year of our history as a coherent and independent republic with a functioning government under law, a statutorily prescribed budget, a well-managed statutorily prescribed and constitutionally vouchsafed national debt, and an unblemished credit rating.
It will be, in other words, the Burkean “conservative” thing to do, in forthright and regrettably inescapable disregard of the latest passel of radical secessionist’s aim bluffingly to threaten destruction of our republic fiscally and financially from within much as their forebears who occasioned passage of the 14th Amendment’s Debt Clause first threatened right after the Civil War.
As Professor Tribe and I recently explained in The Hill, the Congress and President in taking this advice would at worst be exceeding a merely arbitrary and now obsolete pseudo-limit written into a statute enacted well over a century ago not to constrain, but to expand executive financing options during wartime – an objective that those urging the Congress and President to reject this advice ironically tout in arguing that the pseudo-“limit” must now be observed notwithstanding all the other laws that bowing to its misread command would require us all to violate. This law – again, the Liberty Bond Act of 1917 – has been routinely updated, in a purely pro forma manner, ever since the First World War. It was ultimately sidelined and in that sense replaced, however, by a more modern budget regime in the form of the Congressional Budget and Impoundment Control Act of 1974.
I should say a bit more on the latter to make clear how decisive and indeed dispositive it is at the present moment.
The 1974 Act, ironically, was aimed precisely at ending the by-then “imperial-presidential” penchant of Richard M. Nixon for refusing to spend what Congress’s budgets, all signed by the President himself into law, required him to spend – that is, for doing exactly what the tiny secessionist rump Republican MAGA minority is now attempting to box President Biden into doing! This it did by instituting, for the first time in our history, a detailed and comprehensive Congressional budgeting process in parallel with the 1921-legislated Presidential budgeting process.
This latter, quite painstakingly detailed process in turn requires, inter alia, (a) specific congressional authorizations for all federal programs, (b) congressional authorizations for all appropriations, and, with the latter, (c) congressional determinations of all expenditures, all taxes, and hence all debt issuances to cover gaps between taxes and expenditures – including for prior debts’ servicing. Via this new regime, which with the 1921 Presidential Budget Act comprehensively displaced and superseded the moribund “Liberty Bond” regime, the collated Presidential and Congressional budgets – that is, each final federal budget each fiscal year – has been its own “debt ceiling” – and floor.
Of course one might now say in hindsight that Congress should probably have repealed the Liberty Bond Act and its progeny outright when passing the Congressional Budget Act nearly sixty years later if not the Presidential Budget Act earlier, since the latter effectively rendered the former Act moot – a vestige on all fours with the human tailbone. But Congress in 1921 and 1974 probably never dreamed we would be faced again decades later with a new Civil War conducted by budgetary means.
Nobody, after all, foresaw such a thing. As Sinclair Lewis had long before noted both ironically and in lonely isolation, “It Can’t Happen Here.” And while “repeals by implication” might be generally disfavored, neither must long-overlooked, opportunistically rediscovered, leagally moribund provisions like 31 USC 3101(b), as Justice Scalia once colorfully noted in Lamb’s Chapel v. Center Moriches, be permitted new flesh-eating life like the zombies of a George Romero film.
As if to prove this point, the 1917 vintage “debt ceiling” never was treated as being so much as “a thing” till the aforementioned neo-secessionist Speaker of the US House of Representatives from a former Confederate state – Newt Gingrich – spotted an opportunity to weaponize the budget over 20 years later in 1995. Since then, only very few legislators, all of them ironically identified with Lincoln’s now inverted political party – self-styled “Republicans” – have abused this obsolete provision to bluff-threaten fiscal Armageddon in hopes of extorting what they cannot secure through the ordinary Presidential and Congressional budgeting process. And it therefore remains, notwithstanding the strange protestations of a MAGA-apologist former judge, anything but “normal.” (Terrorism is nothing to “normalize,” especially if one is a former Circuit Judge, even if a radically “conservative” one.)
How, then, to proceed? And how to regard what I and many colleagues urge in addressing that question?
Well, as I have said here and elsewhere, we are all adamant that the President, the Senate, all remaining real republicans in the “Republican” Party, and all loyal citizens simply must treat the 1917 vintage “debt ceiling” as rendered moot by the 1974 Congressional Budget and Impoundment Control Act, by 31 USC §3123, and by the multiple constitutional provisions I have cited both elsewhere and above. There simply is no legitimate way around this, be it through extorted “compromise” or through law-mocking gimmickry. And again, please bear in mind that we do not cite all of this other law only as if it were a “kit” of legal “tools” to “deploy” in a judicial proceeding, applicable as they might be in that setting. We also are urging, “wholistically” as it were, that everyone – all loyal citizens – repudiate and ignore the faux “ceiling” and call the MAGA Republican rump faction’s bluff.
And bluff it indeed is. For no member of Congress, no matter how unhinged, will wish to appear in a court to demand that a judge order the Treasury Department to violate scores of millions of contracts, stiff scores of millions of legally entitled veterans and pensioners, last year’s legislated budget, and multiple constitutional and statutory provisions guaranteeing the aforementioned rights and the aforementioned laws. And this is not even to mention the possible non-justiciability of any such attempt, be it under “standing” or the “political question” doctrines.
Congress’s and President Biden’s suspending the obsolete 31 USC §3101(b), which is a vestige from 1917 that is not reconcilable with the post-1974 Congressional budget regime, the multiple constitutional and statutory provisions I have cited, or the sacred covenants I elaborated above that these laws embody, while continuing to comply with 31 USC §§ 3102 through 3106 – as well as the all-important 31 USC §3123, which statutorily reaffirms what the Debt Clause of 14th Amendment to our Constitution requires – would thus in no sense be borrowing on the credit of the United States “on [the President’s] own unilateral say-so,” as suggested by the already mentioned, occultly reasoned MAGA apologetic to which I alluded above. It would be borrowing as required by both (a) Congress itself, and (b) our republic’s own Constitution.
It would, in other words, simply be disregarding one 1917 provision long ago fallen into desuetude in order to remain in compliance with a multitude of more recent and more detailed legal provisions, as well as three constitutional provisions. And, in light of multiple venerable canons of statutory construction – viz. the “later in time” rule, the “specific trumps the general” rule, the “constitutional-issue avoidance” doctrine and the “absurd result” canon – the President and Congress could not even be said to be “violating” the long since mooted 31 USC §3101(b) in disregarding the current secessionist attempt at its illegitimate use.
Suppose, however, you were uncomfortable with this way of articulating our view, preferring to hold that 31 USC §3101(b) in some sense remains “good law” and its threatened “deployment” a legitimate or “normal” exercise notwithstanding the incompatibility of its current would-be neo-secessionist application with the rest of our law and our social contract, including the 1974 budget regime, 31 USC §3123, and multiple additional constitutional and statutory provisions?
Well, in one sense this would mean merely that we have a terminological quibble. What I call “mooted,” “obsolete,” or “invalidly applied” you call “valid though abused.” I’m fine with that. But only if you then follow the counsel of my thoughtful colleagues Neil Buchanan and Michael Dorf, who in a classic sequence of scholarly articles and weblog posts beginning in our last “debt ceiling” crisis (and resuming now) have recommended that sane Members of Congress and the President choose what they’ve wisely called “the least unconstitutional option.”
My own view of the law and our national covenant might be somewhat more optimistic and less “tragic” than that of my brilliant friends and colleagues Michael and Neil, in that I incline to see clearly obsolete and incoherent applications of laws that remain on the books only through inattention – laws such as “no sidewalk spitting” ordinances – as no longer applicable law. (Justice Harlan’s classic observation on desuetude in Poe v. Ullman is fitting here.) But in the end my views and Professors Buchanan & Dorf’s views converge. I simply call a “not really unconstitutional option” what my thoughtful colleagues call the “least unconstitutional option.” In the end, that is the option, however labeled, that a Lincolnian Congress and President Biden, along with all committed citizens of our republic, must choose to rebuff to avert tragedy.
I’ll close with a brief jurisprudential observation. In a still mainly common law system like ours, in which the corpus of law slowly evolves to meet new contingencies as they emerge over time, it is bound to occur now and then that older provisions come to be superseded by newer ones without anyone’s immediately noticing the incompatibility. The latent contradiction might accordingly lie dormant until some unforeseen attempt at misusing the older provision – in this case a subversive attempt like that repeated by tiny minorities of neo-Confederate Representatives like Newt Gingrich and Marjorie Taylor Greene – renders it no longer mistakable.
In a constitutional republic whose citizens do not always have the logical Ubersicht of a Kurt Gödel, who is said by Oskar Morgenstern to have discovered a dictatorship-enabling contradiction within our own Constitution on the day of his naturalization, the common law process applicable even to legislative interpretation must include means of self-cleansing, means of sidelining vestigial legal provisions clearly excluded by large numbers of more recent provisions particularly “as applied” by those seeking the destruction of our democracy. In our system, one such means is the set of interpretive canons, several noted above, that judges routinely deploy in avoiding constitutional and statutory conflict and incoherence. Another is the time-honored distinction between legal provisions “as written” and “as applied” – one reason I’ve used the word “application” repeatedly here.
In the end, however, the utility of these self-cleansing tools rides on the statesmanship of our republic’s custodians – its legislators, its executive, its courts, and its citizenry. At this perilous moment of crisis, those stewards are clearly ourselves – and with them our agents the President, the Senate, and all but a few neo-secessionist, neo-Confederate white supremacists, one of them now under federal criminal indictment, in our House of Representatives. Unless we and they act now and act well, the final act of stewardship will have to be taken by our courts.