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I think you're right. If I'm sitting on the court, I might accept whatever flimsy loophole the Executive Branch provides, and say, "Congress is free to clarify

I think you're right. If I'm sitting on the court, I might accept whatever flimsy loophole the Executive Branch provides, and say, "Congress is free to clarify their intentions at any time to resolve this impasse". Now the ball is in the House's court. Are they going to vote to positively default? (Rather than passively not act before some deadline, like how they do it now?) I bet not.

fnordpiglet 3y ago
Given the 14th amendment exists and its purpose was in fact to assure the treasury would always pay its debts and the constitution overrides any law, it wouldn’t be a very flimsy loophole to say congress would need to clarify possible up to and including an amendment. The debt ceiling isn’t specifically about paying debts but about authorizing new borrowing. So while the treasury may not be able to legally issue debt to pay existing debt, it would be required to pay debt. This is of course the starve the beast goal of the debt ceiling to force spending cuts to pay the debt by making the debt payment so vast that the federal government would become a shadow of itself in that eventuality. However since the law has never been contested it’s not clear it would work. But the treasury of course has many other ways of paying debts, including simply issuing currency. Even if the 14th amendment doesn’t invalidate the debt ceiling, the treasury still must pay the debts, and doesn’t have to do so by cutting spending. It would however be more orderly and strictly better for everyone if the 14th amendment did invalidate the debt ceiling in a situation that questioned the treasuries ability to make whole debts without resorting to disruptive measures.
- immibis 3y ago
  The 14th amendment doesn't say the Treasury must always pay its debts. It says everyone has to act as if the Treasury will always pay its debts. It could default tomorrow, and you'd be constitutionally required to accept T-bills at face value anyway.
  - jjeaff 3y ago
    "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." It is strangely worded, but I think it could be interpreted to also mean that the government shall not do anything that would call the validity of the debt into question. It doesn't really make sense to pass an amendment that tries to mandate the perception of the validity of the debt. if the government stops honoring it, then the invisible hand of the market will consider it invalid.
    - immibis 3y ago
      That would be a reach. The non-reaching interpretation is the face value one: the validity of the public debt ... shall not be questioned. It's hardly the most anti-market law around - the US has farm subsidies, and some countries even have price controls.
      - ndriscoll 3y ago
        What would that even mean though? Bonds are sold at auctions, and already sell at a price different from face value. The difference determines the yield. You could have "no one questioning the validity" but people are still going to either not participate in the auction, or bid only for high yields.
      - jjeaff 3y ago
        One of the factors in evaluating a case is whether the proposed remedy is feasible or even possible. I'm not sure what forcing everyone else to "consider valid" a government bond that is not being honored. Do you arrest and imprison anyone who reveals that they are not getting paid on their bond at maturity? Do you force buyers to buy it at face value, even though they know it will not be honored?
    - eli 3y ago
      I don't think that's a reach. There's a credible argument that it compels the President to continue to service debts
dragonwriter 3y ago
> I think you're right. If I'm sitting on the court, I might accept whatever flimsy loophole the Executive Branch provides, and say, "Congress is free to clarify their intentions at any time to resolve this impasse". See, that's why you aren't on the Court. What the kind of people that actually get put on the Court would mostly due to allow the action without endorsing its legality would be: (1) Be sticklers about standing and other threshold issues (ripeness, mootness, etc, but standing is the big and most useful one here); almost no litigant other than Congress acting as a whole will have the kind of particularized injury to allege that would give them standing to challenge paying the debt (an actual creditor might have standing the other way, but that's not the scenario we’re concerned with.) (2) If you really can’t kick the case for standing or other threshold issues (well, first, amateur, but...) then invoke the “political question doctrine” to avoid it anyway.
- function_seven 3y ago
  Haha. Well obviously that what I meant by my shorthand phrasing! But like, for other people who aren't so smart, thanks for detailing the mechanisms I would use :)
- JumpCrisscross 3y ago
  > almost no litigant other than Congress acting as a whole The House as a whole would probably have standing.
  - function_seven 3y ago
    Oh you just gave me an idea for another hypothetical. If the House was unable to elect a Speaker during the time the debt ceiling was breached, would they even be capable of bringing any action before the Court? One stalemate averted by another!
    - dragonwriter 3y ago
      It is only a rule of the House that limits business that can't be done pending election of a speaker (and before the recent crisis was resolved, one of the solutions proposed was changing the House rules to allow more with an Acting Speaker), so, not in any way that the House itself couldn’t bypass, even without electing a Speaker.

fnordpiglet 3y ago

Given the 14th amendment exists and its purpose was in fact to assure the treasury would always pay its debts and the constitution overrides any law, it wouldn’t be a very flimsy loophole to say congress would need to clarify possible up to and including an amendment. The debt ceiling isn’t specifically about paying debts but about authorizing new borrowing. So while the treasury may not be able to legally issue debt to pay existing debt, it would be required to pay debt. This is of course the starve the beast goal of the debt ceiling to force spending cuts to pay the debt by making the debt payment so vast that the federal government would become a shadow of itself in that eventuality. However since the law has never been contested it’s not clear it would work. But the treasury of course has many other ways of paying debts, including simply issuing currency. Even if the 14th amendment doesn’t invalidate the debt ceiling, the treasury still must pay the debts, and doesn’t have to do so by cutting spending. It would however be more orderly and strictly better for everyone if the 14th amendment did invalidate the debt ceiling in a situation that questioned the treasuries ability to make whole debts without resorting to disruptive measures.

immibis 3y ago
The 14th amendment doesn't say the Treasury must always pay its debts. It says everyone has to act as if the Treasury will always pay its debts. It could default tomorrow, and you'd be constitutionally required to accept T-bills at face value anyway.
- jjeaff 3y ago
  "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." It is strangely worded, but I think it could be interpreted to also mean that the government shall not do anything that would call the validity of the debt into question. It doesn't really make sense to pass an amendment that tries to mandate the perception of the validity of the debt. if the government stops honoring it, then the invisible hand of the market will consider it invalid.
  - immibis 3y ago
    That would be a reach. The non-reaching interpretation is the face value one: the validity of the public debt ... shall not be questioned. It's hardly the most anti-market law around - the US has farm subsidies, and some countries even have price controls.
    - ndriscoll 3y ago
      What would that even mean though? Bonds are sold at auctions, and already sell at a price different from face value. The difference determines the yield. You could have "no one questioning the validity" but people are still going to either not participate in the auction, or bid only for high yields.
    - jjeaff 3y ago
      One of the factors in evaluating a case is whether the proposed remedy is feasible or even possible. I'm not sure what forcing everyone else to "consider valid" a government bond that is not being honored. Do you arrest and imprison anyone who reveals that they are not getting paid on their bond at maturity? Do you force buyers to buy it at face value, even though they know it will not be honored?
  - eli 3y ago
    I don't think that's a reach. There's a credible argument that it compels the President to continue to service debts

dragonwriter 3y ago

> I think you're right. If I'm sitting on the court, I might accept whatever flimsy loophole the Executive Branch provides, and say, "Congress is free to clarify their intentions at any time to resolve this impasse". See, that's why you aren't on the Court. What the kind of people that actually get put on the Court would mostly due to allow the action without endorsing its legality would be: (1) Be sticklers about standing and other threshold issues (ripeness, mootness, etc, but standing is the big and most useful one here); almost no litigant other than Congress acting as a whole will have the kind of particularized injury to allege that would give them standing to challenge paying the debt (an actual creditor might have standing the other way, but that's not the scenario we’re concerned with.) (2) If you really can’t kick the case for standing or other threshold issues (well, first, amateur, but...) then invoke the “political question doctrine” to avoid it anyway.

function_seven 3y ago
Haha. Well obviously that what I meant by my shorthand phrasing! But like, for other people who aren't so smart, thanks for detailing the mechanisms I would use :)
JumpCrisscross 3y ago
> almost no litigant other than Congress acting as a whole The House as a whole would probably have standing.
- function_seven 3y ago
  Oh you just gave me an idea for another hypothetical. If the House was unable to elect a Speaker during the time the debt ceiling was breached, would they even be capable of bringing any action before the Court? One stalemate averted by another!
  - dragonwriter 3y ago
    It is only a rule of the House that limits business that can't be done pending election of a speaker (and before the recent crisis was resolved, one of the solutions proposed was changing the House rules to allow more with an Acting Speaker), so, not in any way that the House itself couldn’t bypass, even without electing a Speaker.