A right-wing former judge named Michael McConnell argues in the NYT that the House GOP is simply acting in the spirit of the parliamentarians who used the power of the purse against the Stuarts. This is normal politics, not hostage taking. Biden is obligated to negotiate. If he doesn’t, he’ll lose the case before the Supreme Court, because there is a big difference between questioning the validity of debts and simply not paying them. The issue won’t get that far, however, because selling bonds without a debt ceiling increase isn’t practically possible, given the level of risk the buyers would be accepting.
Is he right? Let’s deconstruct the argument:
- BIDEN IS CHARLES I: Parliament didn’t authorize any of the king’s expenditures. Congress mandated Biden’s. The GOP wants to undo what it already legally did.
- IT’S NOT HOSTAGE TAKING: Threatening to crash the economy over debts you previously authorized if you don’t get everything you want is normal politics? Give me a break!
- BIDEN IS OBLIGATED TO NEGOTIATE: McCarthy has no votes to spare. Trump and several GOP extremists who voted for the ransom note have made it clear they will accept nothing less. Does that sound like “negotiating?”
- THE SUPREMES WILL RULE IN FAVOR OF THE HOUSE GOP: McConnell doesn’t address the standing and justiciability issues any plaintiff would face. And do you really think the framers of the Fourteenth Amendment thought it was OK to refuse to pay Civil War debts as long as you didn’t say they were legally invalid? The result is exactly the same.
- SELLING BONDS WITHOUT A DEBT CEILING INCREASE WON’T WORK: Yes, there will be a risk premium, which is why this approach isn’t ideal, but is it likely that investors will completely shun these bonds, given the virtual certainty of payment?
The bottom line is that the use of the Fourteenth Amendment is not ideal, but it’s certainly better than refusing to pay the debt. If that’s the choice facing Biden in the last hours before default, and it probably will be, given the inability of the GOP to accept any kind of reasonable compromise, he should take it without hesitation.