Legal expert: Biden could side-step the McCarthy showdown using Constitutional powers

Constitutional law professor Laurence Tribe told MSNBC on Monday that he thinks there might be some wiggle room for President Joe Biden as he tries to keep the United States government afloat amid the debt ceiling limit.

According to host Lawrence O'Donnell: "Whether the Constitution, 'which says the validity of the public debt of the United States shall not be questioned,' overrides the cap on public, legislated by Congress, as they call the debt ceiling. If Congress fails to pass an increase in the debt ceiling to cover the debts already incurred by congressional spending, can the president and the Treasury use the authority of the Constitution to continue to incur more debt to pay the government's bills? Which are bills that were legislated by Congress? Everyone has changed their minds about the debt ceiling."

During the past ten years, the debt ceiling has become weaponized by Republicans. In 2013, they tried to use it to eliminate Obamacare. They used it again to force Democrats to fund Trump's border wall. Critics say it's now being used to eliminate programs passed in Joe Biden's first two years in office that cost money.

There are two possible ways of getting around the Republicans. One is a discharge petition, which has already been an idea plotted out by Democrats in Congress. The other, O'Donnell explained, is for Biden to declare that the Constitution says "when and if the debt ceiling comes into conflict with the Constitution, the president will use the power of the Constitution to override the legislative debt ceiling."

In 2011, Tribe penned a column for the New York Times that advocated against the idea. Now, however, Tribe thinks he could have been wrong.

He explained he hasn't changed his mind about the Constitution or the debt ceiling, but about "the right question to ask" about the powers of the presidency.

"I used to think the right question was whether the president has special power to borrow without congressional permission," Tribe explained. "The answer was no. Does he have power to impose access without congressional permission? The answer is no. Does he have the power of a one-person Supreme Court, who could strike down an act of Congress? The answer is no. But the real question isn't what power does the president have. It is what duties does the president have. Does the president have a duty to execute all of the laws of the United States, the ones that Congress passed telling him to spend money? He does have that duty."

Tribe explained that the question then becomes whether Congress can override the duty of the president "by confronting the president with an impossible choice, by telling the president, look, we have told you we spend this money. You've taken an oath to uphold the Constitution, to enforce all the laws. But we won't let you do it because we've got you over in a barrel. We're not gonna raise the ceiling, which serves no function at all unless you stiff some of the people who are owed money by the United States, maybe veterans, maybe hospitals, maybe Social Security recipients, maybe pension funds, and bondholders."

The president doesn't have the authority to stiff those people because the 14th Amendment says that the public debt of the U.S. "lawfully incurred shall not be questioned."

"So, even if the president is pushed into a corner by Congress and replaces some of the obligations that we have to these various creditors, with IOUs — because there will be — they can't permanently cancel our debts," Tribe continued. "The debt ceiling will still be breached. There is nothing the president can do to avoid that consequence. So, what I suggest that he has to do is simply look the other way. Not pay attention to this impossible thing that Congress has asked him to do. Follow his oath, and enforce all the laws, very much what Lincoln did in 1861 when he had a choice. He could either enforce the law creating habeas corpus, let the Union army get decimated, and let the Union go to pieces, and let all our laws be violated. Or he could temporarily suspend habeas corpus, so that all the laws would not be broken. He chose the latter. The lesser of two evils."

It's that piece of U.S. history that led Tribe to think this was the better option for Biden.

See the full explainer in the video below or at the link here.

Harvard's Tribe details how Biden could side-step the debt ceiling using constitutional powerswww.youtube.com