Pluralistic: How (and why) Biden should overcome the Supreme Court to end the debt showdown (26 May 2023)

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A kitchen sink. The Supreme Court building protrudes from it. Behind the sink is a window. Joe Biden grins from the other side of the window.

How (and why) Biden should overcome the Supreme Court to end the debt showdown (permalink)

Is it legal for Congress to default on the US national debt? It depends on who you ask. There are a ton of good legal arguments for and against, so perhaps it comes down to what the (degraded, corrupt, illegitimate, partisan) Supreme Court says?

Put in those terms, it seems like the game was over before it began. Biden should just surrender, hand the most extreme wing of the (degraded, corrupt, illegitimate, authoritarian) Republican Party whatever it wants, even if doing so will push Biden's approval rating even lower, dangerously close to the next federal election.

In this telling, the Republicans have already won. The decision to let the GOP steal three Supreme Court seats, combined with the decision not to end the debt ceiling charade when Dems had the majorities to do so, means that from now on, we live in the GOP's shithole country, where the only "freedoms" that matter are the freedom to control others' bodily autonomy and gender expression; the freedom to exploit labor; the freedom to censor ideas that challenge white nationalist, imperialist messages; and the freedom to menace with open-carry assault weapons:

In other words, we're screwed. Might as well dig a hole, climb inside, and pull the dirt in on top of us.

Fuck that.

There are clear majorities in support of the Build Back Better agenda, and even for the watered down Manchin Synematic Universe version we got through the Infrastructure Bill. If the Dems could mobilize voters – by convincing them that they were committed to doing things rather than capitulating – they could win strong majorities in 2024. Even in the gerrymandered, antimajoritarian America, electoral wins are possible – they just require overwhelming turnout, rather than the 50.00001% "victories" favored by "data-driven" Democratic consultants (victories that leave the party incapable of governing, and let monsters like Joe Manchin hold the entire nation hostage).

Maybe I'm wrong. Maybe doing things won't mobilize voters. But if we're already going to stipulate that without significant majorities, the real President of the United States is the three-headed monster (Gorsuch, Thomas, and Roberts), and the billionaires who yank their chains, then what do we have to lose?

There are a lot of things that Biden could try to get through the debt ceiling crisis without giving up on the promises he made to the American people and the programs the American Congress passed. Here's a couple interesting ones, courtesy of Brad DeLong:

  • "The Federal Reserve might simply record a negative balance in the Treasury account," then create an "overdraft" account and pay the US's obligations out of it;

  • The Fed could tell retail banks trying to clear government checks that the checks didn't clear, and the banks could tell their depositors, " your Treasury check has bounced, but do not worry, we have credited your account, anyway, and will handle this, and please be very grateful to us."

Of course, there are lots of other possibilities: Biden could issue an Executive Order to the effect that the Debt Ceiling violates the 14th Amendment. Or that it violates the Contracts Clause. Or he could order the Treasury to start issuing coupon-free bonds. Or he could just mint the coin:

Yes, each of these would end up in front of the (degraded, corrupt, illegitimate, partisan) Supreme Court, who would very likely strike them down.

But writing for The American Prospect, Ryan Cooper argues that this could still be sound tactics:

If Biden does something about the debt default, and the Supremes block it, then the default is their fault. What's more, it's a mess they absolutely do not want to get into, like deciding which of the US's creditors will and won't get paid when they sue over the default. And if the court won't do it, will they give the president the power to "just pick and choose what gets paid? That would give him a de facto line-item veto over the entire budget, and the Court has already ruled that a law explicitly giving him that power is unconstitutional":

Basically, if the Supreme Court kills Biden's attempt to resolve the budget crisis, then it becomes the Supreme Court's problem, as everyone owed a federal payment "say, Social Security beneficiaries or military contractors," brings a case – "There would be tens of millions of such potential litigants."

So what should Biden do?

Call their bluff.

First, mint the coin. If the court strikes that down, issue coupon-free bonds. If the court strikes that down, declare debt ceilings to violate the 14th Amendment. If the court strikes that down, declare it to violate the Contracts Clause. Keep doing it. Throw in every solution including the kitchen sink – but never give into the GOP's demand for Biden to violate his promise to the American people and unilaterally tear up laws establishing programs that make our lives better.

This is what Lincoln did when the Supreme Court blocked his attempts to end slavery. It's what FDR did when they blocked the New Deal. The court doesn't have an army, it can't force its decisions on the American people. It doesn't have a bureaucratic workforce and it can't take over the administrative branch – hell, they don't even have the keys to the office buildings.

The Supreme Court's power comes from its legitimacy, not force of arms, and while they may not act like it, the Supremes know in their bones that without legitimacy, they are nothing:

The justices in stolen seats have made it clear that they consider themselves to be "a de facto super-legislature that rules in favor of its own partisan policy objectives based on tendentious up-is-down reasoning or no reasoning at all." This is an illegitimate proposition.

The Supreme Court can't get any less legitimate. If Biden were to ignore the Supremes and make good law in the teeth of their pronouncements, it couldn't make the situation any worse than it is today. The Supremes have set themselves against labor law, against climate resiliency, against bodily autonomy, against political accountability, against the rule of law itself. We should not – we must not – cede the power to overrule democratically elected lawmakers and the will of the people.

As Cooper says, Biden should tell the Supremes to go pound sand and then "raise holy hell in speeches and the press to make clear the grotesque irresponsibility of what is happening":

Here’s an institution trying to cause a completely pointless national default, destroying untold jobs, businesses, and the credit rating of the country, whose elite members are all unelected, where five members of the majority were appointed by a president who took office after losing the popular vote, and one of whom occupies a blatantly stolen seat. Here’s an institution that has struck down anti-corruption laws by the bushel and is openly rolling in oligarch graft like Scrooge McDuck, while declaring itself to be immune from oversight. All that would add to the political pressure on the justices.

If Biden can't do well for the American people they they will not turn out in the massive majorities that Democrats need to get minimal majorities. If Biden can't do well for the American people, then Biden – who would lose an election to either Ron DeSantis or Donald Trump if it were called today – will turn America's predators loose on its people for at least four more years:

And let's face it, it'll be Trump. DeSantis is dead in the water. The GOP is the party of out-of-control, swivel-eyed loons who've been whipped into a terrorized frenzy by an evil, crapulent senescent Australian billionaire and his freak henchmen, like the taint-tanning frozen food failson. They aren't going to elect "smart Trump." They like "stupid Trump" (AKA "Trump") too much.

(Image: Joe Ravi, CC BY-SA 3.0, modified)

Hey look at this (permalink)

A Wayback Machine banner.

This day in history (permalink)

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#10yrsago US entertainment industry to Congress: make it legal for us to deploy rootkits, spyware, ransomware and trojans to attack pirates!

#10yrsago Triple-nested Klein bottle

#5yrsago Ireland’s referendum results: legalised abortion projected to win “by a landslide”

#5yrsago Congressional staffers for Rep. Tom Garrett [R-VA] say they were used as “personal servants”

#1yrago Attacking machine learning training by re-ordering data

Colophon (permalink)

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