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Sunday, May 07, 2023

Laurence Tribe is (sort-of) Wrong

Professor Tribe has an op-ed in today's New York Times stating that he's changed his mind about the propriety of a president invoking Section Four  of the Fourteenth Amendment. He now says: "For a president to pick the lesser of two evils when no other option exists is the essence of constitutional leadership, not the action of a tyrant."

But this point is wrong as applied to debt ceiling. President Biden does have other lawful options besides the evils of default and Section Four. The Treasury can issue premium bonds or mint the trillion dollar coin (though I prefer the premium bonds). To be sure, smashing the debt ceiling is the simplest solution in the absence of congressional action. But that does not make that the correct legal solution. 

One can understand why the Administration is not discussing these legal alternatives. If they do, then Congress has no incentive to act. And congressional action is obviously better than the novel alternatives. At some point, though, the Treasury must explain why these are not plausible alternatives to justify an unprecedented Section Four action.

There are some interesting comparisons between this situation and Youngstown. President Truman had different statutory options to address the steel strike. But he didn't like them for various reasons, so he decided to take unilateral action instead. The Court said that the availability of these statutory options meant that his unilateral action was unlawful (though the opinions addressed this point in different ways). You can say the same here. The fact that the Treasury does not like the statutory options does not make unilateral action lawful. 

In one important respect, though, this situation is different from Youngstown. There it was certain that a proper lawsuit would challenge the seizure because the steel firms had standing to sue. Here it is unclear that anyone would have standing. To summon a theme from Justice Jackson's concurrence, maybe the advice of a presidential advisor should focus on that point. In other words, my conclusion that President Biden lacks the power to invoke Section Four is coming the point of view of a neutral observer. If I were a presidential advisor,  though, maybe I would be telling him that his chances of prevailing are pretty good and so he should go ahead to avert a financial crisis and create a precedent that defangs the debt ceiling. 

Posted by Gerard Magliocca on May 7, 2023 at 02:02 PM | Permalink


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