Lawrence O’Donnell invited constitutional law professor Laurence Tribe onto his show last night to explain how he changed his thinking on Biden using the 14th Amendment as authority to pay the nation’s debt.
“What I changed my mind about is, what is the right question to ask,” Tribe said.
“I used to think the right question was whether the president has special power to borrow without congressional permission. The answer was no.
“Does he have to the power to impose taxes without congressional permission? The answer is no.
“Does he have the power of a one-person Supreme Court, who could strike down an act of Congress? The answer is no.
“But the real question isn’t what powers the president have. It is, what duties the president has. Does the president have a duty to execute all of the laws of the United States, the ones that Congress passed, telling him to spend money? He does have that duty.
“The question then becomes, does Congress have the power to override that duty by confronting the president with an impossible choice by telling the president, look, we have told you to spend this money, you’ve taken an oath to uphold the Constitution, to enforce all the laws. But we won’t let you do it.
“Because we’ve got you over a barrel, we’re not gonna raise the ceiling which serves no function at all unless you stiff some of the people who are owed money by the United States. Maybe veterans, maybe hospitals, maybe pension funds and bond holders.
“Well, the president doesn’t really have the authority to stiff those people because of the 14th Amendment. It automatically says, ‘The public debt of the United States lawfully incurred shall not be questioned.”
So, he said, the president has to not pay attention to this impossible thing that Congress has asked him to do, follow his oath, and force all the laws. He compared it to Abraham Lincoln’s choice to override the law creating habeaus corpus, instead of letting the Union Army get decimated.
“It seems to me that no, you’ve got to be very careful about putting the right question, so that’s how I changed my position. I don’t think the president is a one-man Supreme Court.
“But he has got to execute the laws that Congress passed.”
He explained, basically, that the president doesn’t have a line-item veto and has to pay all the bills. He can’t pick and choose.
“Congress has to prioritize. You can’t put that on the president.”
By the way, Rep. Jamie Raskin, another constitutional scholar, agrees. He said Sunday that Biden can invoke the 14th Amendment. Via Common Dreams:
Asked whether the president could and should use that part of the amendment to combat Republican efforts to hold the global economy hostage, Raskin (D-Md.) told MSNBC’s Jen Pskai—Biden’s former press secretary—that “I think he has that authority under these circumstances, absolutely, because the Congress has put him in a constitutionally untenable position.”
“If he decides to default for the country, he’s… violating the Constitution, because the 14th Amendment says you can’t do that,” Raskin said of Biden, pointing to a New York Times opinion piece by Harvard University professor emeritus Laurence Tribe.