WEBVTT - President Biden's Debt Ceiling Options

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<v Speaker 1>This is Bloomberg Law with June Brusso from Bloomberg Radio.

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<v Speaker 2>Is imposing the fourteenth Amendment a perfect solution? No it

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<v Speaker 2>is not, but using the fourteenth Amendment would allow the

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<v Speaker 2>United States to continue to pay its bills on time

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<v Speaker 2>and without delay, prevent an economic catastrophe.

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<v Speaker 1>With no sign of a debt limit deal in sight,

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<v Speaker 1>some progressive Democrats, like Senator Bernie Sanders are urging President

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<v Speaker 1>Biden to invoke the fourteenth Amendment to go around Congress

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<v Speaker 1>to pay off the nation's debts. Biden believes he has

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<v Speaker 1>the legal right to do that, but doesn't necessarily know

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<v Speaker 1>if he has the time because of the expected legal challenges.

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<v Speaker 2>I'm looking at the fourteenth Amendment whether or not we

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<v Speaker 2>have the authority. I think we have the authority. The

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<v Speaker 2>question is could it be done and invoked in time?

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<v Speaker 1>Joining me is Michael Dorf, a professor at Cornell Law

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<v Speaker 1>School who's been studying and writing about this issue for

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<v Speaker 1>some twelve years. So the White House has appeared to

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<v Speaker 1>rule out invoking the fourteenth Amendment, even though President Biden

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<v Speaker 1>said this week that he believes he has the legal

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<v Speaker 1>right to invoke it. So tell us what the argument

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<v Speaker 1>is there? For the Fourteenth Amendment.

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<v Speaker 3>So Section four of the Fourteenth Amendment says that the

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<v Speaker 3>validity of the public debt of the United States shall

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<v Speaker 3>not be questioned. And it was adopted in eighteen sixty

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<v Speaker 3>eight in response to the fear that representatives of the

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<v Speaker 3>states of the former Confederacy in Congress might not pay

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<v Speaker 3>for the Union side debts from the Civil War. But

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<v Speaker 3>the language is much clearly broader than simply Civil War debts,

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<v Speaker 3>and so it is taken by everybody to be a

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<v Speaker 3>general statement of the proposition that the federal government should

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<v Speaker 3>pay its debts. There is debate over or what counts

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<v Speaker 3>as part of the public debt. Does that mean, as

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<v Speaker 3>some people say, only principle and interest payments on bonds,

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<v Speaker 3>or does it mean, as simplical say, in the other direction,

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<v Speaker 3>everything that the government has agreed to pay. So that includes,

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<v Speaker 3>of course bond principle and interest, but also paying creditors

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<v Speaker 3>for services rendered, such as hospitals and doctors who perform

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<v Speaker 3>medical services pursued to medicare social security recipients who are

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<v Speaker 3>owed the money by virtue of entitlement legislation, and so forth.

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<v Speaker 3>So that's the question, and the theory is that if

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<v Speaker 3>the government is unable to pay all of its bills,

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<v Speaker 3>then that is either a default, or even if not

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<v Speaker 3>a default, it calls into question the validity of the

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<v Speaker 3>public debt. So some people argue, and I think this

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<v Speaker 3>is a pretty plausible argument, that if the government fails

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<v Speaker 3>to raise the debt feeling and can't come up with

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<v Speaker 3>the money to pay all of its bills some other

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<v Speaker 3>way by taxes or selling property or what have you,

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<v Speaker 3>then that would violate the fourteenth Amendment. And under those circumstances,

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<v Speaker 3>the debt sealing statute would be unconstitutional. And so the president,

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<v Speaker 3>by so called invoking that would be saying, well, if

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<v Speaker 3>the debt stealing statute is unconstitutional, we do what we

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<v Speaker 3>do with any unconstituted statute. We put it aside. And

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<v Speaker 3>then there are other statutory provisions that authorize the government

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<v Speaker 3>to borrow so much money as is necessary to pay

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<v Speaker 3>the government's bills. So that's the theory behind invoking the

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<v Speaker 3>fourteenth Amendment. And as I say, it's pretty good. What

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<v Speaker 3>President Biden expressed a worry about is that, as he said,

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<v Speaker 3>it would have to be litigated. Now I don't think

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<v Speaker 3>that's literally accurate. It wouldn't have to be litigated, but

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<v Speaker 3>it almost certainly would be litigated. So, as a practical matter,

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<v Speaker 3>his concern is legitimate people would sue. Possibly House Republicans

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<v Speaker 3>would sue. You could imagine investors in pension funds and

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<v Speaker 3>the like suing to stop the funds from purchasing bonds

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<v Speaker 3>of questionable legality, and so there would be litigation, and

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<v Speaker 3>that would mean that there would be uncertainty about the

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<v Speaker 3>new debt that had been issued. At the very least,

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<v Speaker 3>there would be an interest premium that the government would

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<v Speaker 3>have to offer investors to accept bonds that might not

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<v Speaker 3>later be declared valid.

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<v Speaker 1>Has this been tested in the courts at all? Barack

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<v Speaker 1>Obama also rejected this option during the twenty eleven debt

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<v Speaker 1>sealing crisis. Why are presidents so reluctant to.

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<v Speaker 3>Use this well, precisely because it hasn't been tested in

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<v Speaker 3>the courts. The way that our legal system works is

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<v Speaker 3>you can't get into federal court just to ask a question.

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<v Speaker 3>You can do that in some state court systems. There

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<v Speaker 3>are many other countries in which you can do that.

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<v Speaker 3>You can get a so called advisory opinion from a

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<v Speaker 3>constitutional court. Until relatively recently that was the only kind

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<v Speaker 3>of ruling you could get in France, for example. But

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<v Speaker 3>our courts do not issue advisory opinions, and so the

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<v Speaker 3>only way to find out the answer to a legal

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<v Speaker 3>question is to do it in real time, as it were.

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<v Speaker 3>And so I think the reason that both President Obama

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<v Speaker 3>and now President Biden were reluctant to go that route

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<v Speaker 3>was because if you do, and then subsequently the courts say, actually,

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<v Speaker 3>you can't do that because the fourteenth Senment has a

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<v Speaker 3>narrower scope, or because even if the dead ceiling is

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<v Speaker 3>unconstitutionally you still don't have the power to borrow money.

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<v Speaker 3>Then you only find out after the fact, and in

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<v Speaker 3>the meantime a whole lot of people might have purchased bonds,

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<v Speaker 3>and that could add to the chaos, uncertainty, and economic damage.

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<v Speaker 1>There is a lawsuit filed by a federal workers' union

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<v Speaker 1>in Massachusetts. Is it on the theory that you have

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<v Speaker 1>said is a possible alternative to the fourteenth Amendment?

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<v Speaker 3>Yes, So that lawsuit, which I think is very well crafted,

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<v Speaker 3>is on behalf of unionized federal workers, thousands of them

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<v Speaker 3>who would risk not getting paid on time and being

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<v Speaker 3>unable to pay the bills. For their families, if the

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<v Speaker 3>government does not raise the dead feeling, and if the

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<v Speaker 3>administration then goes through with what is sometimes thought to

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<v Speaker 3>be the conventional wisdom of then prioritizing paying people who

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<v Speaker 3>have bonds and deprioritizing other government bills, so not paying

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<v Speaker 3>federal workers. Their theory is not that this would violate

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<v Speaker 3>the fourteenth Amendment, but following a line of reasoning that

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<v Speaker 3>I and Neil Buchanan, who's a macroeconomist at the University

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<v Speaker 3>of Florida, have articulated over the last dozen or so years,

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<v Speaker 3>the theory would be that this would be a violation

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<v Speaker 3>of separation of powers. And let me explain why that

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<v Speaker 3>would be so. Article one, section eight of the Constitution

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<v Speaker 3>gives to Congress all of the relevant powers of the purse,

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<v Speaker 3>the power to tax, the power to spend, and the

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<v Speaker 3>power to borrow. If the government passes sets of laws

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<v Speaker 3>that say, collectively, spend more money than the combination of

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<v Speaker 3>what you take in through taxation and borrowing, Professor Buchanan

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<v Speaker 3>and I say, well, that means that the government can't

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<v Speaker 3>comply with all three of those things simultaneously. Something has

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<v Speaker 3>got to give. Our analysis has always been that what

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<v Speaker 3>has to give then should be the debt sealing that

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<v Speaker 3>the debt sealing provision would be the one that you

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<v Speaker 3>don't comply with. And the reason is that you can't

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<v Speaker 3>do either of the other two things. Certainly, the president

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<v Speaker 3>isn't going to raise taxes on his own. That's not

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<v Speaker 3>power the president has. But the president also doesn't have

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<v Speaker 3>the power to prioritize, that is to say, to cut spending.

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<v Speaker 3>That's the power of Congress. The Constitution says Congress gets

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<v Speaker 3>decide how much we spend money on. And it's not

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<v Speaker 3>just that the president can't spend money without authorization. The

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<v Speaker 3>president also can't not spend money that he's been authorized

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<v Speaker 3>to spend. I can give you two relatively recent examples

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<v Speaker 3>of this. So President Nixon tried to do this. He impounded,

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<v Speaker 3>that is to say, didn't spend a whole bunch of

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<v Speaker 3>money that Congress had appropriated, and that was eventually slapped

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<v Speaker 3>down by the court. When President Trump did this with

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<v Speaker 3>respect to the money that was supposed to go to Ukraine,

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<v Speaker 3>that ended up being the first basis for the articles

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<v Speaker 3>of impeachment against him in twenty nineteen. Right, the idea

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<v Speaker 3>that you can't fail to spend money that Congress has

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<v Speaker 3>said you should spend. And the reason for that is simple.

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<v Speaker 3>Congress has the power of the purse. Budget deals are

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<v Speaker 3>carefully negotiated. There's all sorts of bargaining going on. If

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<v Speaker 3>the president could just decide, you know what, I didn't

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<v Speaker 3>want to spend the money on this combat fighter plane

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<v Speaker 3>or for this environmental project, so I'm just not going

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<v Speaker 3>to spend it, you would be taking over legislative power.

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<v Speaker 3>And so what this lawsuit argues is if the president,

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<v Speaker 3>in a debt sealing crisis were to say, I'm going

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<v Speaker 3>to pay the bondholders, I'm going to pay federal military contractors,

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<v Speaker 3>but I'm not going to pay all of these federal workers.

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<v Speaker 3>That would be a usurpation of legislative power, far worse

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<v Speaker 3>than for the president simply to instruct the Secretary of

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<v Speaker 3>the Treasury continue borrowing money the way you always do,

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<v Speaker 3>but only in the amount necessary to cover the revenue gap. Crucially,

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<v Speaker 3>what the lawsuit says is that Congress could, if it

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<v Speaker 3>wanted to give to the president discretion not to spend

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<v Speaker 3>certain funds. But it hasn't done that here, and it

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<v Speaker 3>certainly hasn't provided any kind of what is sometimes called

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<v Speaker 3>an intelligible principle, by which the president is supposed to

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<v Speaker 3>make the decision of whom to pay, when to pay,

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<v Speaker 3>whom to stiff by how much, and so forth, so

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<v Speaker 3>that in the absence of congressional legislation specifying a prioritization scheme,

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<v Speaker 3>it is a usurpation of legislative power because of the

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<v Speaker 3>vast scope of presidential discretion. As I say, that is

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<v Speaker 3>the theory of this lawsuit. It is also more or

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<v Speaker 3>less the view that Professor Buchanan and I have been

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<v Speaker 3>arguing for now for about a dozen years.

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<v Speaker 1>The judge in Boston has ordered a hearing for next

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<v Speaker 1>week on May thirty first, on this key argument, But

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<v Speaker 1>the Justice Department lawyer didn't take a position on that

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<v Speaker 1>question at issue.

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<v Speaker 3>So far right, So this goes back to a point

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<v Speaker 3>you made earlier, which is that although President Biden has

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<v Speaker 3>seemed to rule out the so called fourteenth Amendment option,

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<v Speaker 3>neither he nor Secretary Yellen has taken off the table

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<v Speaker 3>all of the other possible workarounds in the event that

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<v Speaker 3>a deal doesn't get through Congress. I suspect that what

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<v Speaker 3>the Justice Department is doing here is sort of holding

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<v Speaker 3>their cards as close to the vest as possible, because

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<v Speaker 3>they undoubtedly have a Plan B, but they want to

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<v Speaker 3>keep the pressure on the Congress to make a deal

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<v Speaker 3>by not saying what that Plan B is. I should

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<v Speaker 3>say this is not necessarily the best bargaining strategy. Sometimes

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<v Speaker 3>you want to make clearer to your bargaining partner what

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<v Speaker 3>you'll do in the event that the negotiations break down,

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<v Speaker 3>because arguably by ruling out or seeming to rule out,

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<v Speaker 3>these other workarounds, what the administration is doing is telling

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<v Speaker 3>Speaker McCarthy, hey, we've got no Plan B, and so

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<v Speaker 3>we need this more than you do. What you really

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<v Speaker 3>want is to put the pressure on the other side

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<v Speaker 3>to think that they need it more than you do,

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<v Speaker 3>and so ruling out Plan B doesn't seem to do that.

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<v Speaker 3>But as I say, I don't think that President Biden

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<v Speaker 3>has fully ruled out other options, whether it's the fourteenth

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<v Speaker 3>Amendment or even better, this separation of powers argument, or

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<v Speaker 3>some of the other ideas that have been floated.

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<v Speaker 1>So as the Union was pushed for the case to

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<v Speaker 1>be put on an even faster track, the federal judge

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<v Speaker 1>Richard Stern said, if the emergency is as dire as

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<v Speaker 1>you think it is. I would think that it's within

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<v Speaker 1>the power of the president to address it using executive

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<v Speaker 1>branch authority. What do you think he was saying there?

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<v Speaker 1>It's not my value Wick, So I'm.

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<v Speaker 3>Not really sure. Until we hit the so called X date, right,

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<v Speaker 3>the date in which the government runs out of money,

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<v Speaker 3>the president isn't going to address it by borrowing additional funds,

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<v Speaker 3>and for the moment, the Treasury is paying all of

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<v Speaker 3>the bills in full and on time. Now, maybe he's

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<v Speaker 3>suggesting that the administration could issue an executive order stating

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<v Speaker 3>what it's going to do in the event that the

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<v Speaker 3>clock strikes midnight with no legislation. But of course the

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<v Speaker 3>Union is suing the administration right, Saying that the administration

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<v Speaker 3>could do something seems like it's confusing who the plaintiff

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<v Speaker 3>and the defendant are, right, the plaintiffs of the and

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<v Speaker 3>who are saying, yeah, they should do something, so give

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<v Speaker 3>them an order to do it.

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<v Speaker 1>How likely is it that the judge would give them

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<v Speaker 1>an order to do it?

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<v Speaker 3>I think it's quite unlikely. Before you know, June one

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<v Speaker 3>or June two, that is, I think the judge here

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<v Speaker 3>quite understandably is hoping to be let off the hook

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<v Speaker 3>and waiting to see whether Congress enacts something in the

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<v Speaker 3>next few days.

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<v Speaker 1>In the area of I told you so, the president

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<v Speaker 1>could have announced from the start that the debt ceiling

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<v Speaker 1>was unconstitutional and it won't stop him from paying the

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<v Speaker 1>country's bills, and that's it.

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<v Speaker 3>So let me be clear. I have never said, and

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<v Speaker 3>I don't think that there is any good way around

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<v Speaker 3>the debt ceiling if Congress doesn't raise it. All we're

0:13:48.320 --> 0:13:51.920
<v Speaker 3>talking about are what are the less bad ways around it.

0:13:52.120 --> 0:13:54.880
<v Speaker 3>And it's not necessarily even my view that the debt

0:13:54.880 --> 0:13:58.000
<v Speaker 3>feeling is unconstitutional the way Professor Buchanan and I talk

0:13:58.040 --> 0:14:01.200
<v Speaker 3>about it, As we say, violating the debt ceiling is

0:14:01.600 --> 0:14:07.880
<v Speaker 3>less unconstitutional than the other plausible options, in particular, less

0:14:07.960 --> 0:14:12.720
<v Speaker 3>unconstitutional than usurping legislative power to make the president have

0:14:12.800 --> 0:14:16.840
<v Speaker 3>the decision over the entire budget. But what I have said,

0:14:17.200 --> 0:14:19.920
<v Speaker 3>and this is more as a matter of sort of

0:14:20.240 --> 0:14:25.520
<v Speaker 3>strategy and tactics and constitutional law, is that the president's

0:14:25.600 --> 0:14:30.480
<v Speaker 3>hand would be strengthened in any bargaining were he to

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<v Speaker 3>announce that, if push comes to shove, I'm going to

0:14:35.000 --> 0:14:38.480
<v Speaker 3>continue to issue debt. I should say I'm not a

0:14:38.480 --> 0:14:43.000
<v Speaker 3>professional strategist, tactician, or politician. And so when I say

0:14:43.000 --> 0:14:45.080
<v Speaker 3>that they should have announced that, I don't say that

0:14:45.160 --> 0:14:49.800
<v Speaker 3>with enormous confidence. I have greater confidence in my legal

0:14:49.800 --> 0:14:53.800
<v Speaker 3>analysis than I do in my ability to project how

0:14:53.840 --> 0:14:55.240
<v Speaker 3>all the politics plays out.

0:14:55.560 --> 0:15:00.240
<v Speaker 1>But no one has that ability, as we've seen. What

0:15:00.320 --> 0:15:02.680
<v Speaker 1>are some of the other suggestions out there?

0:15:03.160 --> 0:15:08.239
<v Speaker 3>There are other suggestions floating about. One that was popular

0:15:08.800 --> 0:15:12.120
<v Speaker 3>back in twenty eleven and has been refloated this time

0:15:12.160 --> 0:15:18.080
<v Speaker 3>around is a seemingly crazy idea to have the US

0:15:18.280 --> 0:15:22.800
<v Speaker 3>Mint create a coin with a face value of approximately

0:15:22.920 --> 0:15:27.040
<v Speaker 3>three trillion dollars and deposit this with the Federal Reserve,

0:15:27.200 --> 0:15:32.560
<v Speaker 3>which would then credit the Treasury's account by three trillion dollars,

0:15:32.680 --> 0:15:35.640
<v Speaker 3>and they would use that money to pay the government's bills.

0:15:35.880 --> 0:15:39.200
<v Speaker 3>The idea is so facially outlandish that I believe the

0:15:39.240 --> 0:15:43.280
<v Speaker 3>administration has ruled it out. In addition, I don't actually

0:15:43.320 --> 0:15:46.840
<v Speaker 3>believe it has the legal advantages that as proponents say.

0:15:46.840 --> 0:15:50.400
<v Speaker 3>That is to say, I don't think the statute authorizing

0:15:51.040 --> 0:15:54.040
<v Speaker 3>the creation of these coins is for anything other than

0:15:54.560 --> 0:15:59.200
<v Speaker 3>collector's items and commemorative coins. But that's one idea that's

0:15:59.200 --> 0:16:04.000
<v Speaker 3>floating around a somewhat less ridiculous idea is to have

0:16:04.120 --> 0:16:07.880
<v Speaker 3>the government borrow money but to issue bonds that either

0:16:08.160 --> 0:16:13.200
<v Speaker 3>have no expiration date or that pay a super premium

0:16:13.280 --> 0:16:16.440
<v Speaker 3>rate of interest. And the reason to do that is that,

0:16:16.600 --> 0:16:19.680
<v Speaker 3>given that the way that the Debt Feeling Statute is written,

0:16:19.880 --> 0:16:24.600
<v Speaker 3>the face value of those bonds would be much lower

0:16:24.600 --> 0:16:27.240
<v Speaker 3>than what the government could sell them for, and so

0:16:27.320 --> 0:16:29.720
<v Speaker 3>the government would be able to actually issue a lot

0:16:29.760 --> 0:16:32.720
<v Speaker 3>of debt, not all of which would count against the

0:16:32.800 --> 0:16:35.080
<v Speaker 3>debt fealing, and so that would buy a whole lot

0:16:35.120 --> 0:16:38.520
<v Speaker 3>of time potentially. I think this argument is somewhat more

0:16:38.520 --> 0:16:41.400
<v Speaker 3>plausible as a matter of the statutory text, but it

0:16:41.400 --> 0:16:44.560
<v Speaker 3>would also be subject to the same problem that the

0:16:44.560 --> 0:16:48.200
<v Speaker 3>President had with invoking the fourteenth Amendment, namely, there would

0:16:48.240 --> 0:16:51.880
<v Speaker 3>undoubtedly be litigation over the validity of those bonds.

0:16:51.920 --> 0:16:54.960
<v Speaker 1>Well, thanks so much for covering the entire landscape for us.

0:16:55.160 --> 0:16:58.760
<v Speaker 1>That's Professor Michael Dorf of Cornell Law School, and that's

0:16:58.800 --> 0:17:01.520
<v Speaker 1>it for this edition of the Bloomberg Glaw Show. Remember you

0:17:01.520 --> 0:17:04.000
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0:17:15.960 --> 0:17:19.880
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<v Speaker 1>and you're listening to Bloomberg