During our nation’s last ‘debt ceiling’ imbroglio about a decade ago, one might have suspected Republicans were trying their hand at the old Nixon ‘mad man’ gambit. A fine way to get one’s way, Nixon had confided, is to let your counterparty in a negotiation believe you’re sufficiently lacking in sanity as to welcome Armageddon if you don’t get your way. That way, he argued, you persuade your sane counterparty to give in.
Certainly that’s how things looked back in 2011. Yes, some of the ‘Tea Party’ types who’d entered Congress that January appeared literally mad. But the likes of John Boehner, Paul Ryan, Eric Cantor and even then-new Congressman Kevin McCarthy surely would not commit national fiscal suicide, many thought. And they proved to be right, as witness their party’s partial capitulation in that year and full capitulation in 2013.
This time, however, it seems the Republican House might be literally mad – at least in the sense our first Treasury Secretary, Alexander Hamilton, had in mind when he spoke of ‘the imbecility of our [pre-Constitutional] Union.’ The idea connoted incontinence, incoherence, incapacity to exercise collective agency. And that is how Congress looks now – the Republican House Caucus, at any rate – with as little as one lunatic able to pull the plug on the House Speaker’s leadership.
While this might seem to render real motion on the federal ‘debt ceiling’ this time more remote even than last time, it might actually bring it, ironically, closer to easy success. The reason at first might ring counterintuitive, but stick with me a moment…
The reason a debt ceiling fiasco might be easier-averted this time than last time is rooted in two factors.
The first is the likelihood that most House Republicans really are clinically mad this time around, such that President Biden, unlike his predecessor Mr. Obama, will see literally no point in aiming to ‘humor’ the ‘fiscally demented’ or ‘fiscal terrorists,’ as Biden has colorfully referred to them.
The belief he could reason with nearly anyone, after all, surely led Mr. Obama to play ball with 2011’s ‘madmen’ of the Nixon type for as long as there was any hope they were actually sane. And this in turn fueled the long-drawn-out character of the negotiations that time, always a primary source of financial uncertainty and consequent volatility.
The second reason has to do with that financial volatility itself, in combination with the clinical lunacy of the President’s counterparties.
In light of the latter, President Biden is almost certain to follow advice I and others have offered since 2011 – namely, simply to ignore the putative ceiling in virtue of its preemption both by the budget itself, which is law that came ‘later in time’ than the last debt ceiling hike under the Liberty Bond Act of 1917, and by the 14th Amendment to the US Constitution.
He might also take to heart other grounds I’ve proposed in both the distant and more recent past, including arguments from the ‘Take Care’ Clause, the Line-Item-Veto prohibition, and the ‘Absurd Result’ canon of statutory construction.
When he does this, in turn, either he wins by calling Republicans’ bluff, or he is challenged before the Supreme Court, which will invalidate the ‘debt ceiling’ canard once and for all.
Why do I prophesy the latter so unabashedly? Easy: both because the legal case is so slam-dunk, and because the consequences of getting this wrong are quite literally beyond calculation.
However ‘radical’ some of the Supreme Court’s more rightwing Justices might be, even they understand that ‘the Constitution isn’t a suicide pact.’ Even less so is the 1917 Liberty Bond Act, which has long since been superseded by a new Congressional budget process.
All Justices but perhaps Justice Thomas will accordingly strike that law ‘as [it would be] applied’ by Republicans should they try to sue President out of simply ignoring the ersatz ‘debt ceiling’ come June. Even Justices Alito and Coney Barrett surely would balk at the madness of outright default on our national debt for the first time in our history, an unforced error of epic, nay, cataclysmic proportions.
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