The question of using the 14th Amendment's wording — "The validity of the public debt ... shall not be questioned" — to shut down all future Republican attempts to extort legislative concessions when the lethal debt limit is reached appears to be on indefinite hold.
On its face, the debt ceiling is unconstitutional. It is also vastly contradictory. Its statutory wording attempts to override the clear phrasing of the 14th Amendment, and though Congress is free to authorize spending, it then runs up against an arbitrary ceiling. Both cannot live in peaceful coexistence.
Not with Republicans in Congress, who are always eager to replace sober governance with spectacular, bloody theatrics. Let us be absolute on this point. When it comes to the debt ceiling, it is always Republicans who threaten Armageddon, despite The NY Times' silly reporting this morning: "[The Biden-McCarthy agreement] has reopened the door to the debt limit being a perpetual point of leverage that allows the party in the minority — in this case, the Republicans — to use the borrowing cap to extract legislative concessions."
In this case? When have the Democrats ever brought the nation to the brink of default and economic ruin?
That aside, the Biden administration has seemingly bypassed an opportunity to have the 14th Amendment question answered in federal court. I say seemingly, since legal confusion surrounds the issue, as is true with virtually all legal issues.
Earlier this month, as default was nearing, the National Association of Government Employees union filed suit in a Boston district court challenging the constitutionality of the statutory debt limit. The case was humming along, but when Biden-McCarthy reached an agreement, the administration had Justice Department lawyers request the postponement of a hearing scheduled for today, and the judge agreed to one, "indefinitely."
So where does the question of the debt limit's constitutionality stand? Harvard Law's Laurence Tribe tells the Times: "I don’t think there is a judicial solution that lies ahead because the only time that courts can get involved is when it’s a live issue." The good professor recommended that lawmakers "act to iron out the contradictions between the fact that they authorize spending and then set a limit on how much the government can borrow to pay for those expenses" — a recommendation that has as much chance of succeeding as that of Marjorie Taylor Greene curing her psychosis.
Notwithstanding Tribe's opinion, the NAGE union's president, David Holway, says "This weekend’s announcement of a deal on the debt ceiling does not resolve ... our federal lawsuit." By that I assume he means to press it somewhere, somehow. Yet Tribe's take on the matter would seem dispositive. Without a "live issue," a federal lawsuit appears doomed.
Nevetheless, it's unfortunate that the Biden administration asked that the matter be dropped. The Times reports that the administration "preferred to keep its legal thinking on the matter private," but the matter's legal thinking has already been publicly splashed hither and yon. Perhaps the Boston district court could have revealed its thinking, had the Justice Department asked instead that that the lawsuit be pursued.