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The White House Wants a Debt Ceiling Deal

By opposing an injunction in the main lawsuit challenging the debt
ceiling, the president has deliberately boxed himself into negotiations
with legislative terrorists.

 

 

Alex Brandon/AP Photo

By David Dayen

**** For the past several days, I have been writing
about
<[link removed]>
a lawsuit filed by the National Association of Government Employees
(NAGE), challenging the constitutionality of the debt ceiling. Their
case argues that, by passing into law a number of appropriations that
cost money, and also by passing into law a hard debt ceiling, Congress
is requiring the president, once that debt ceiling is reached, to pick
and choose which laws to break. This is approximately the same argument
that Matt Bruenig made
<[link removed]>
on Tuesday: "Congress has essentially passed a set of laws that direct
the president to do X and not-X at the same time." This cedes the power
of what amounts to a line-item veto to the executive, something that has
already been found to be unconstitutional.

Last Friday, NAGE filed for a preliminary injunction in the case,
seeking the kind of quick-acting relief that made the suit a legitimate
factor in the debt ceiling crescendo. Joe Biden and Treasury Secretary
Janet Yellen, the defendants in the case, were served on May 16 and had
until June 6 to respond.

The good news is they responded early. The bad news is that, rather than
acquiesce to the plaintiffs, and agree that hitting the debt limit would
force the executive branch to break the law, the Justice Department,
which is representing Biden and Yellen, signaled their intention
<[link removed]>
to oppose NAGE's bid for relief late on Monday. "Defendants intend to
file an opposition to Plaintiff's Emergency Motion for Preliminary
Injunction," reads one part of a legal filing in the case.

The judge in the case, Richard G. Stearns, set a status conference to
discuss the schedule for Tuesday morning. As a result of that
conference, there will be a hearing on May 31-one day before the
projected X-date-over the preliminary injunction
<[link removed]>. The
defendant's response isn't due until May 30.

Politico has a write-up
<[link removed]>
of the status conference. Judge Stearns resisted holding the hearing
sooner because, he said, "if the emergency is as dire as you think it
is, I would think that it's within the power of the president to
address it using executive branch authority."

Keep in mind that President Biden, just days ago in Japan, told
reporters that he, too, believes he has the authority to keep paying the
nation's bills. The problem, he said, was the timing, since any
sweeping display of power would be challenged in court. But instead of
asserting that authority as the defendant in the NAGE case by agreeing
with the plaintiffs on the injunction, the president is actively
fighting their attempt to obtain an injunction. 

**Read all of our debt ceiling coverage here**
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Now, we don't yet know the nature of the objection. It could be about
ripeness; the borrowing limit hasn't been reached, and the
government's lawyers may just argue that NAGE doesn't have a case
until then. It could be about whether federal employees have standing to
file a case to keep the executive branch borrowing. It could be that the
White House wants to preserve the ability to prioritize payments in a
catastrophe, which this case would make impossible. (In fact, that is
the argument; they argue that would be an unconstitutional line-item
veto.) It could be that the case will rapidly be made moot if the White
House and House Republicans make a deal. Maybe this will be the moment
the government unveils the trillion-dollar coin or a zero-principal bond
and says, "We object to the case because we don't have to break the
law at all, we have other options to pay the bills!" (Ha, no). It could
be any number of technical objections, rather than opposition to the
actual argument that NAGE is making.

Those arguments would be "garden-variety defenses to virtually any
lawsuit that seeks an injunction on the executive, and the long-standing
doctrine of 'constitutional avoidance' urges the court to resolve
the case on one of those grounds before reaching the constitutional
issue," said Max Kennerly, a litigator in Philadelphia.

Here's what we do know. When Stearns asked the lawyer for the
defendants, Alexander Ely of the Justice Department, what the government
thought of the merits of the case, "Ely said he was not authorized to
stake out a position on that question and he suggested that the
department would argue that the union's suit is not a proper vehicle
to force DOJ to come to a legal conclusion ... 'This requires
high-level coordination among the U.S. government.'"

There's certainly a school of thought that the executive branch has a
"duty to defend" laws, as part of the "take care" clause of the
Constitution. But the Obama administration didn't do that in

**Windsor v. United States**, the case that eventually legalized
same-sex marriage. Then-Attorney General Eric Holder wrote in a lengthy
statement
<[link removed]>
that the president concluded that Section 3 of the Defense of Marriage
Act was unconstitutional, and that the Justice Department should not
defend it. This law review article from Brianne Gorod
<[link removed]> takes the
opposite side, that executing the laws doesn't mean defending ones
that the president deems illegal.

The duty to defend is "less a matter of precedent and principle than it
is a matter of vibes," Kennerly said, noting that some argue the real
motivation is "a bureaucratic impulse from the DOJ is to protect its
turf and to appear independent from the President."

But consider the current situation. House Republicans are insisting upon
a draconian set of demands to hobble federal spending (not on the
military, of course, because those hundreds of billions of dollars
magically don't impact the budget for some reason). After insisting
for months that there would be no negotiation on the full faith and
credit of the U.S. government, Biden started negotiating
<[link removed]>.
He then ruled out any other option beyond reaching a deal, cutting off
his own leverage at the knees. And he's now gone beyond that, by

**actively opposing** one of the few methods of escape available.

[link removed]

I concur with what Thomas Geoghegan, attorney for the plaintiffs, said
in court today. It's the president who has said the fallout from a
default would be catastrophic, Geoghegan remarked. The only reason they
aren't saying it as a defendant is to keep their options open in the
negotiations. They don't want to take a side, because then the talks
might break up.

So, to put it bluntly, the White House may have initially stumbled into
the box in which they now find themselves, but now they're standing
firmly in it on purpose. They've created the conditions by which there
is no alternative. If they wanted to pry an alternative open, they had
an option with this case. The case will go forward, of course, but a May
31 hearing leaves almost no time for it to have much bearing on the
situation. It's just another marker in the future that pressures the
White House into making a deal.

The most recent negotiations have been termed "productive
<[link removed]>,"
in the meaningless way that word has been thrown out. But there really
isn't visible common ground
<[link removed]> between the
parties. The White House is bending over backwards, offering a spending
freeze on the discretionary budget (and telling everyone all about it
<[link removed]>),
but House Republicans have said no. Why wouldn't they? The people on
the other side of the negotiating table have signaled they will never
walk away and they have no other option but an agreement. Why wouldn't
the GOP just ask for more and more, and reject anything the other side
wants?

Part of this is about the complete malpractice of two key officials of
the administration: Janet Yellen and Attorney General Merrick Garland.
Yellen, co-defendant in this case, has been the most publicly opposed to
any measures other than a bipartisan deal. Her department has completely
botched pursuing those measures, as Employ America wrote
<[link removed]>
in a must-read post. Treasury is now scrambling to figure out
<[link removed]>
how to delay certain payments, something they could have sorted out
months ago. Garland supplied the attorneys defending this case, and
while we as yet don't know their rationale, the Justice Department
would usually take the lead on deciding whether and how to defend
statutes.

But the buck stops with Joe Biden, who selected both these lieutenants.
He put himself in this bad negotiating position. And he's not going to
let anyone push him off course.

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