Executive branch watchdog to Biden DOJ: Don’t defend 'unconstitutional' debt ceiling against lawsuit

Executive branch watchdog to Biden DOJ: Don’t defend 'unconstitutional' debt ceiling against lawsuit
U.S. Attorney General Merrick Garland with President Joe Biden May 2022 (Creative Commons)

A government watchdog on Monday urged the U.S. Justice Department not to defend the debt ceiling statute against a lawsuit recently filed by a union of federal employees and to support the group's effort to expedite its case as the crucial June 1 deadline nears.

"Attorney General Merrick Garland must refuse to defend the unconstitutional legal incoherence that is the debt ceiling," Jeff Hauser, executive director of the Revolving Door Project, said in a statement. "The Justice Department should file papers supporting the National Association of Government Employees' request."

Hauser's demand came days after the National Association of Government Employees (NAGE) filed for an emergency injunction in their case, which was initially brought on May 8.

The union's new filing declares the debt limit, first established in 1917, a "violation of the separation of powers and the Presentment Clause as set forth in Articles I and II of the United States Constitution" and seeks to bar Treasury Secretary Janet Yellen from "limiting the borrowing of the United States pursuant to the debt limit statute."

The request for an emergency injunction was submitted as debt ceiling talks between the White House and congressional Republicans faltered, with the House GOP pushing for spending cuts that would devastate key social programs and undermine the government's ability to respond to an economic downturn.

Hauser said Monday that NAGE's argument against the constitutionality of the debt limit is "sound" and noted that Biden himself has effectively endorsed it.

Speaking to reporters on Sunday, Biden said he believes "we have the authority" under the 14th Amendment to unilaterally avert a default and a possible global recession.

However, Biden went on to express doubt about whether the 14th Amendment could be "invoked in time," pointing to legal challenges that would follow the move.

But as The American Prospect's David Dayen noted Monday, the president wouldn't technically "invoke" the 14th Amendment in court if he opts to use his constitutional authority to prevent a U.S. default.

"If you're the president and you want to keep borrowing money after the debt ceiling is hit because you think you are legally bound to do so by the Constitution," Dayen wrote, "you just keep borrowing money until somebody stops you."

Pointing to the NAGE lawsuit, Dayen added that the "notion of litigation is no longer theoretical."

"There is a case, and the plaintiffs are seeking quick-action relief. Anyone spinning out a scenario about what might happen if the debt ceiling statute's constitutionality is challenged is just being ignorant," he continued. "It's being challenged in federal district court in Massachusetts right now."

Yellen and Biden, the defendants in the NAGE lawsuit, have both been served with a summons and must respond by June 6 at the latest—five days after Yellen says that, in the absence of congressional action, U.S. will run out of money to pay its obligations.

Hauser said Monday that Garland should intervene in the case "as soon as possible," arguing the Biden administration has "no justification" to "dither."

"Garland has no reason to defend the nonsense which is the debt ceiling, besides a vague sense of formality and tradition driven by elite political etiquette," said Hauser. "The cost of prioritizing tradition for tradition's sake would be irreparable harm to the U.S. and global economies, caused by a first-ever U.S. default as soon as June 1—or else complete capitulation to the ultra-MAGA faction of the House Republican caucus that marionettes Kevin McCarthy."

Biden and McCarthy are expected to meet again on Monday evening as the House speaker faces pressure from the far-right House Freedom Caucus to accept nothing less than the extreme legislation Republicans passed last month.

But Hauser said that while Biden "may be willing to keep channels open until the very last minute with nihilistic, bad-faith Republican lawmakers, the Justice Department's obligation is to the Constitution, which is unequivocal: the president cannot pick and choose what congressionally appropriated obligations to meet, and the debt of the United States shall not be questioned."

"Garland may be constitutionally reluctant to seek the spotlight, but this crisis threatens the stability of the nation, and indeed, the global economy," Hauser added. "He should not prioritize his own sense of formality over the language of the Constitution he swore to uphold."

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