Rich points to a column by Ezra Klein in the New York Times, in which Klein objects to President Biden taking the “14th Amendment option.” Rich notes that Klein has a practical objection to the idea — namely that “if the administration declares the debt ceiling unconstitutional, only to have the Supreme Court declare the maneuver unconstitutional, then Biden owns the market chaos that would follow.”
This is probably true. But it’s notable that, as usual, Klein and those who share his politics seem to live in a completely lawless world, in which there is no such thing as truth, in which ridiculous ideas that were arrived at yesterday by transparent political hacks are as worthwhile as centuries of universal understanding, and in which the only reason to avoid violating the Constitution is that one might get caught.
Klein describes the “options” before Biden as such:
In one, President Biden simply declares the debt ceiling unconstitutional, pointing to the 14th Amendment, which holds that “the validity of the public debt of the United States … shall not be questioned.” Five Senate Democrats, including Bernie Sanders and Elizabeth Warren, are circulating a letter calling on Biden to do just that. On Friday, 66 progressive congressional Democrats sent the president their own letter making a similar case.
In the other, the Treasury Department uses a loophole in a 1997 law to mint a platinum coin of any value it chooses — a trillion dollars, say — and uses the new money to keep paying the government’s debts.
Then he says:
In remarks after a meeting with House Speaker Kevin McCarthy, Biden said he was “considering” the argument that the debt ceiling is unconstitutional. The problem, he continued, is that “it would have to be litigated.” And that’s the problem with all these ideas and why, in the end, it’s doubtful that Biden — or any Democrat — will try them.
The legality of the debt ceiling or a trillion-dollar platinum coin doesn’t depend on how liberals read the Constitution or the Coinage Act. It depends on how three conservatives read it: John Roberts, Brett Kavanaugh and Neil Gorsuch, who are the closest the Supreme Court now comes to having swing justices.
This is nihilism. Nobody — I will repeat nobody — believes that the 14th Amendment took the power of the purse away from Congress. President Biden doesn’t believe it. The collection of legislators who are writing to Biden don’t believe it. Laurence Tribe, who explained in 2011 why the claim is absurd before he pretended to have changed his mind this year, doesn’t believe it. There is no case here beyond necessity. This isn’t a question of whether the plan is a good one or a bad one; the plan isn’t permissible in the first place. We might as well have a debate about whether the president should “decide” to serve a five-year term.
Klein could say that. It would be easy for him to do so. But, because he’s a coward, he can’t bring himself to do it. So he falls into line, echoes the idea that the problem with the idea of the president usurping Article I of the Constitution is that the usurpation “would have to be litigated” (well, yeah) and then casts the dispute as if it’s just more quotidian politics: “The legality of the debt ceiling or a trillion-dollar platinum coin doesn’t depend on how liberals read the Constitution or the Coinage Act,” he writes, “it depends on how three conservatives read it.”
Our system cannot survive like this. There are, indeed, some parts of the Constitution that are difficult to nail down. But this is not one of them. This is the very core of our system. Article I is extremely clear on which branch has the “Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts” and “to borrow Money on the credit of the United States,” and Section 4 of the 14th Amendment does not alter it in any way. Before 1868, “all legislative Powers herein granted shall be vested in a Congress of the United States.” After 1868, the same. For Klein to signal to his readers that the threat to this settlement comes not from Biden, but from the possibility that the Supreme Court might rule against the innovation — as he immediately goes on to do — is irresponsible in the extreme.
“Irresponsible” is putting it politely. Just over two years ago, Donald Trump attempted to twist the texts of both the 1887 Electoral Count Act and the 12th Amendment to the Constitution into something that they were not, in the hope that doing so would help him stay in power illegitimately. In this endeavor, Trump was aided by a handful of unscrupulous lawyers who, like Laurence Tribe, were prepared to spend the duration of the fight lying about the law. Happily, Trump failed — and one of the reasons for that was that enough people were willing to say out loud that his case was obviously contrived and demonstrably wrong, and they were willing to say so without weasel words, cynical insinuations, or postmodern indifference. Those who pushed back hard against Trump and his flunkies — including at this magazine, both before and after the election — did not argue that “the problem” with Trump’s ridiculous claims was that they “would have to be litigated,” or lament that “the legality doesn’t depend on how conservatives read the Constitution.” They said that Trump was wrong. They said that he was incorrect, lying, usurping, cheating. And they said so as a matter of independent — and self-evident — judgment that was backed up by more than a century of constitutional practice. They said, for example:
The president now says Vice President Pence has the unilateral authority to invalidate state electoral votes that he decides are fraudulent. That is a ridiculous claim. It is not enough to say that it finds no literal support in the Constitution or any federal law. It is antithetical to the Constitution’s core theory of separation of powers — both its vertical aspect, under which the states are sovereign and the disposition of their electoral votes is left to them alone; and its horizontal aspect, in which the branches of the federal government check each other, and no single actor is permitted to accumulate tyrannical power.
Why can’t Klein do the same? What is it about American progressivism that folds instantly in the face of preposterous legal sophistry? Why are left-leaning journalists at prestigious outlets such as the Times so utterly incapable of resisting the temptation to turn the law into sand? Why does their supposed love of “democracy” — and that’s what this is about: voters gave Republicans the House; Biden is trying to cut them out of the process — stop the very moment that Republicans obtain a set of constitutionally promulgated powers? In an 1803 letter to Wilson Cary Nicholas, Thomas Jefferson warned that “our peculiar security is in the possession of a written constitution. Let us not make it a blank paper by construction.” Once again, Klein and his fellow travelers seem to be saying, “agreed, old boy — unless, of course, we can get away with it this time.”
For shame.