The sell-out and the speech

According to a new survey, most Americans disapprove of Republicans’ handling of the history-making House Speaker election following 15 rounds of votes and high drama on the House floor.

After showing America how not to pick a Speaker, Kevin McCarthy (R-Calif.) now shows America how not to design the rules of the House. His rules stack the deck for extremists, insurrectionists and election deniers.

McCarthy passed the first test of his House leadership as Republicans fell in line to back new rules for the chamber. Any pleasure he feels may be short lived, however, as the changes give him little leeway to negotiate compromises with the Senate, and raise the risk of a stalemate over the debt ceiling. 

The hot issue for commentators is the threat by MAGA Republicans to balance the budget by reducing Social Security and Medicare payments. It’s hard to believe Republicans would curtail Social Security and Medicare if they want to have any hope of being reelected in 2024.

Polls show that 77 percent of Americans believe it is critical to maintain Social Security even if it means increasing Social Security taxes paid by the rich — findings that cut across demographic and, importantly, party lines.

Democrats have no monopoly on increasing the deficit. According to the Congressional Budget Office, “Trump left the White House with the largest peacetime budget deficit in American history and a national debt exceeding 100% of the economy for the first time since World War II.”

If MAGA Republicans in Congress really wanted to balance the budget, they might propose an across-the-board tax increase or a reduction in expenditures, which would be unpalatable. They know that such proposals would fail in the House or in the Senate or be vetoed by President Biden.

So, they turn to trying to shut down the government by refusing to raise the debt ceiling.

In the past, negotiations have always yielded a compromise that increases the debt ceiling. But McCarthy seized power by committing to compromising on the debt ceiling unless the Democrats agree to reduce spending on the military budget, Social Security and Medicare, which they are unlikely to do.

A failure to strike a deal would shut down the government. The Treasury would be held hostage. Hospitals, physicians, Social Security recipients would not get their checks, and Ukraine would be unable to shoot down the Iranian drones that are decimating its populace. So, what is the workaround for a country weary of political shenanigans in Washington?

Article I, section 8 of the Constitution states that Congress has the power “to borrow Money on the credit of the United States” to “lay and collect taxes” and to “pay the Debts.” It further states that Congress has “the power to borrow Money on the credit” of the United States. Surely, Hamilton and Madison did not understand that renegade legislators would refuse to pay the bills of the government and undermine the credit of the United States.

The 14th Amendment, section 3 stresses that the power to borrow does not include the power to default. As constitutional scholar Laurence H. Tribe succinctly tweeted, “The debt ceiling is a misnomer: it does nothing to cap spending but just creates an illusory threat to stiff our creditors.” That’s because “[Section] 4 of 14th Amendment forbids defaulting on the nation’s debts.”

Tribe had once expressed some skepticism about this 14th Amendment-based argument when it first arose during the Republicans’ debt ceiling gambits in the Obama years. He now agrees that the relevant constitutional provision – “The validity of the public debt of the United States, authorized by law… shall not be questioned.” – requires the president to borrow to prevent a default that would most assuredly bring the validity of the public debt into question.

A president facing the conundrum of not being able to honor spending, taxing and debt ceiling laws simultaneously must choose to spend and tax as Congress has ordered, which surely must take priority over the debt ceiling. As a 2021 tweet of Tribe’s puts it, this is “the lesser of two constitutional evils.”

The Biden administration should request a formal legal opinion from the Office of Legal Counsel (OLC), which is responsible for constitutional advice to the administration. If the OLC agrees that the president can act on his own, the White House could clarify that its preference is to work with Congress to raise the debt ceiling, but explicitly retain the constitutional prerogative to act unilaterally. In short, the White House should seize the initiative to disarm Congress now.

The issue may need to be resolved by the Supreme Court and may bring on a constitutional crisis.

The American people are sick and tired of investigations of investigators, debt ceilings, threats to defund the government, shutting down its entitlement programs.

In stark contrast, there were the words of House Minority Leader Hakeem Jeffries (D-N.Y.), the first Black leader in Congress of either party, after he handed the Speaker’s gavel of the 118th Congress over to McCarthy. Jeffries gave a stirring coda, exalting “maturity over Mar-a-Lago, normalcy over negativity,” and “xenia over xenophobia.” He said he would try to find common ground with Republicans in the interests of the American people but vowed: “we will never compromise our principles.”

These are the politics Americans hunger for to elevate Congress from its sadly dysfunctional and toxic state.

James D. Zirin is a former federal prosecutor in the Southern District of New York.