The American Constitutional Crisis

Now that Kevin McCarthy is the Speaker of the House of Representatives, the Republicans plan to paralyze the Biden administration by threatening to default on the nation's debt. But Jennifer Rubin writes that the debt crisis is as manufactured as the resume of the Republicans' newest house member, George Santos:

For starters, the House GOP is spoiling for a fight on the debt limit. The rules package eliminates a long-existing parliamentary rule that automatically raised the debt ceiling whenever the House passed a budget. This will empower the House to hold the economy hostage to extract dangerous cuts to national security and crippling reductions in entitlements.

But the White House can defuse the extortionists’ bomb before it is detonated. It should plainly state that the president has the power to ensure Congress does not sabotage the full faith and credit of the United States.

Section 8 of Article I of the Constitution states that Congress has the power “to lay and collect taxes, duties, imposts and excises, to pay the debts.” It further states that Congress has the power to borrow “on the credit” of the United States. Plainly, the Founding Fathers did not envision lawmakers deliberately refusing payment of debts and destroying the credit of the United States.

But the 14th Amendment makes clear that this power does not include the power to trigger a default. As constitutional scholar Laurence H. Tribe succinctly tweeted, “The debt ceiling is a misnomer: it does nothing to cap spending but just creates an illusory threat to stiff our creditors.” That’s because “[Section] 4 of 14th Amendment forbids defaulting on the nation’s debts.”

In other words, the constitution does not allow what the Republicans want to do. That will not stop them. If the last four years have proved anything, it's that Republicans only abide by the Constitution when they want to. Their leader recently called for the constitution to be suspended.

Besides manufacturing a debt crisis, the Republicans plan to bring all Justice Department investigations of Donald Trump and his co-conspirators to a halt. That would be a clear violation of the constitutional principle of the separation of powers:

It would do this by establishing a subcommittee on the “weaponization of the federal government,” which would be authorized to review ongoing criminal investigations.

Former federal prosecutor Joyce Vance explains in a Substack post, this would “go far beyond the legitimate scope of oversight. Reviewing criminal cases while they’re in progress, which DOJ won’t permit (although it will be forced to waste a lot of time and resources fending off the committee’s requests), would overstep Congress’s bounds and violate the separation of powers.”

It’s no secret what the Republicans are up to. Vance writes: “This is little more than a mechanism for House Republicans to try to interfere with any investigations into Trump, or any other Republicans, like George Santos or Matt Gaetz, who may be the subject of non-January-6-related matters.” She adds that Rep. Jim Jordan (R-Ohio), who will likely lead the subcommittee, “will be able to issue subpoenas regarding the Hunter Biden investigation, which is being handled by a Trump-holdover U.S. Attorney in Delaware to try to embarrass President Joe Biden and argue that his Justice Department is giving favorable treatment to his son, which it clearly isn’t doing.”

The Justice Department has a well-established practice to prevent Congress from meddling in ongoing investigations and prosecutions. As the Justice Department explained in a letter to a congressional subcommittee in 2000, “Although Congress has a clearly legitimate interest in determining how the Department enforces statutes, Congressional inquiries during the pendency of a matter pose an inherent threat to the integrity of the Department’s law enforcement and litigation functions.” The letter continued, “Such inquiries inescapably create the risk that the public and the courts will perceive undue political and Congressional influence over law enforcement and litigation decisions. Such inquiries also often seek records and other information that our responsibilities for these matters preclude us from disclosing.”

The Biden administration will be very busy over the next two years -- not passing legislation, but defending the constitution.

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