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When Campaigns Infect Congress
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When Campaigns Infect Congress

How we got to the possibility of Biden invoking the 14th Amendment to solve the debt-ceiling crisis.

President Joe Biden meets with House Speaker Kevin McCarthy in the Oval Office of the White House on May 22, 2023, in Washington, D.C. (Photo by Drew Angerer/Getty Images)

Cheese Plate

Dianne Feinstein will turn 90 next month. She has suffered a series of health setbacks that have kept her out of the Senate, and her mental state has raised red flags among colleagues and reporters. As she is the deciding vote on the Senate Judiciary Committee, her absence has cost Democrats time filling judicial vacancies. Nancy Pelosi’s daughter is now by her side every day at the Capitol, and those familiar with the arrangement told Politico, “It’s only the most visible part of a quiet but critical role the Pelosi family has played in helping to take care of the ailing senator, both in Washington and San Francisco.”

But Feinstein is from a safe blue state in which the governor appoints an interim replacement. For all the drama and awkwardness and missed votes, why isn’t there more pressure from Democratic leadership for her to resign? 

Sure, there’s respect for her legacy and nobody can force her to do anything, but let’s be real. That’s not what any of this is about. This is because she’s from a safe blue state in which the governor appoints an interim replacement. 

Here’s the part nobody wants to say out loud: If Feinstein resigns tomorrow, California Gov. Newsom will get to pick her interim replacement and that person will a) have a leg up in the 2024 primary as a quasi-incumbent and b) owe their loyalties to Newsom. Newsom has already committed to appointing a black woman to the seat.

You see the problem. But here’s another layer. Adam Schiff, the former chairman of the House Permanent Select Committee on Intelligence during the Russia investigation, who also ran the first impeachment of Donald Trump, is running for the seat already. He’s the preferred pick of leadership folks like Pelosi, has the highest name ID of any of the likely candidates, and can tap a national fundraising base. But he’s not a black woman. 

So anyone who favors Schiff wants Feinstein in that seat as long as possible. Anyone who favors Rep. Katie Porter, a progressive favorite who is also white, does too. All an interim appointment would do in their view is make it harder to break into the two-person race between Schiff and the interim senator. 

And then there’s Rep. Barbara Lee. She’s the only black woman in the race so far, but she’s trailing Schiff and Porter distantly in the polls. She’s best known for voting against the war in Afghanistan more than 20 years ago. If Feinstein resigned, the question for Newsom would be whether to put Lee in the spot or pick a different black woman who would commit not to running for the seat. 

If he picks Lee, he’d certainly help her candidacy, but how much? She’s polling in single digits and she’s 76 years old. If he picks a placeholder, he’ll anger folks in the California Legislative Black Caucus who would see that as weaseling his way out of his promise. Sure, technically, he’d be keeping his word by appointing a black woman who would serve out the rest of Feinstein’s term, but he certainly wouldn’t be using his appointment power to raise up a black woman as a viable candidate for a safe Democratic seat into the future. 

And this is why Feinstein is still in office. Nobody is actually better off if she leaves. Not Schiff, not Porter, not Pelosi … not even Newsom. 

Trout Almondine

Enough with this “the 14th Amendment will fix the debt ceiling” nonsense! I can’t take it anymore! But let me back up for a moment. 

The 14th Amendment says (among other things):

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.

The question is whether this means that President Biden can unilaterally ignore the debt ceiling and keep on paying the public debts of the United States. If this theory is correct, the debt ceiling itself is unconstitutional or at least unenforceable. But there are a few problems here. 

First, the plain text is pretty clear to me. The 14th Amendment says that the validity of debts can’t be questioned. If the Democratic-controlled Congress had passed student loan relief last year and authorized payment for a whole bunch of people’s loans, then the Treasury would make those payments. What if Republicans then came in and passed a new law that said, “Nah, we rescind that law and also will act like it never existed”? That would be unconstitutional under the 14th Amendment. Why? Because this Congress would be disavowing debts already incurred by a previous Congress. 

That’s not what is happening here. Congress isn’t saying it doesn’t owe the money. Lawmakers are saying they don’t have the money to pay what is owed. The debts themselves aren’t being questioned, and therefore, there’s no 14th Amendment problem. (Mind you, there’s a whole lot of other problems—like permanently screwing the credit of the United States—but as Justice Scalia used to say, “stupid but constitutional.”)

Second, even if the debt ceiling did call into question the debts of the United States, why in the world would the 14th Amendment empower the president to do jack squat about it? Article I, Section 8 authorizes Congress to pay debts and borrow money on credit. Of course, it also gave Congress the power to raise revenue (tax) and appropriate that money for the general welfare (spend). 

So what if Congress screws up the job? It passes a budget (that the president signs into law) that spends more than it raises and then refuses to take on the debt necessary for the president to execute that budget. The president is constitutionally charged with executing the budget law—but what if he can’t? Does the president get to choose his own adventure as to which power of Congress he gets to usurp in order not to violate his constitutional duties? Surely not, or the whole separation-of-powers thing would pretty quickly go out the window. And this brings us back to the campaign side of things. 

The fact that this has never been litigated is a selling point to the Biden folks, who want to be able to maintain a strong negotiating position as they careen toward the deadline while calming markets that are getting jittery. The idea that he might have an ace in his pocket is helpful toward that goal. Of course, it might be worth remembering that Democrats controlled both houses of Congress as of December and could have done this all quite easily back then. They also squandered 97 days saying they would never negotiate on raising the debt ceiling and are now surprised that they are running out of time to negotiate on raising the debt ceiling. 

But that’s not the part that intrigues me the most. 

Check out who is cheering on this option the loudest. Folks like Sens. Tina Smith, Elizabeth Warren, Jeff Merkley, Ed Markey, Bernie Sanders, and Reps. Pramila Jayapal, Ilhan Omar, and Greg Casar. It’s members of Congress! We’re talking about the president usurping congressional powers and yet that is the best part of the deal, it would seem, for these folks. I get it. They don’t want the president giving away anything to Speaker Kevin McCarthy, not just because of the substance of what they might give away but because it will empower McCarthy moving forward as well. But let’s not kid ourselves, it also gets them off the hook from having to do the tough part of legislating—deciding whether to compromise to avoid a disaster or walk away and explain why the cure was worse than the disease. 

And that is all about the incentives for legislative candidates who fear primaries more than general elections. 

This may seem like a non-sequitur, but bear with me. Last week, Justice Neil Gorsuch wrote a statement after the Biden administration ended the Title 42 declaration—a COVID-era public health order—to turn away would-be asylum seekers at the border and the Supreme Court decided a pending case on the matter was moot. Here’s an excerpt of what he had to say about how our system of government fared during the pandemic:

While executive officials issued new emergency decrees at a furious pace, state legislatures and Congress—the bodies normally responsible for adopting our laws—too often fell silent. … 

A leader or an expert who claims he can fix everything, if only we do exactly as he says, can prove an irresistible force. We do not need to confront a bayonet, we need only a nudge, before we willingly abandon the nicety of requiring laws to be adopted by our legislative representatives and accept rule by decree. … We may even cheer on those who ask us to disregard our normal lawmaking processes and forfeit our personal freedoms. …

The concentration of power in the hands of so few may be efficient and sometimes popular. But it does not tend toward sound government. However wise one person or his advisors may be, that is no substitute for the wisdom of the whole of the  American people that can be tapped in the legislative process. Decisions produced by those who indulge no criticism are rarely as good as those produced after robust and uncensored debate.

These debt ceiling negotiations are being framed as a crisis. And one side wants you to believe that a single guy living in the White House can solve it with the stroke of a pen. I think that’s wrong as a matter of law, but more importantly, it’s wrong as a matter of principle. Emergency executive powers are necessary when Congress is not available to act. That is not the case here—nor was it after the first few weeks of the pandemic. The legislative process is by its nature messy and requires unpleasant compromise. That is a feature, not a bug. 

If members of Congress think their job is too hard or too unpleasant, voters should find someone else to do the work. The problem, as you all know by now, is that voters seem to like the instant gratification of executive action or judicial fiat as well—whether it’s the debt ceiling, abortion, climate change, immigration, student loans, etc.

… as long as their guy is in charge. 

Strawberry Shortcake

There’s nothing wrong with needing a little “me time.” Boredom brings its own form of joy.

Sarah Isgur is a senior editor at The Dispatch and is based in northern Virginia. Prior to joining the company in 2019, she had worked in every branch of the federal government and on three presidential campaigns. When Sarah is not hosting podcasts or writing newsletters, she’s probably sending uplifting stories about spiders to Jonah, who only pretends to love all animals.