We are witnessing one of the more troublesome electoral periods in modern times. A fractured Republican party that still has not given up the ghost of Trumpian “leadership”, needed 15 separate votes to elect a Speaker, and finally succeeded only after the leading candidate made a series of humiliating promises to a small group of hard-right conservatives. Some of the promises are in writing; others are reported be "hand-shake" undertakings known to but a few in the "Freedom Caucus."
The issue that causes the most discussion in the press is the threat by some of the in the hard right group to balance the budget by reducing Social Security and Medicare payments. It's hard to believe the Republicans would tinker with Social Security, also known as "the third rail of politics" but they seem to be doing it anyway. Polls show 82% population is opposed to any such move.
The scheme goes like this: each year the government passes legislation establishing a new debt limit. It is, as expected, traditionally higher than the previous debt limit. Republicans assert this is improvident, and insist on capping the debt limit, despite the fact that the last time they were in power they skyrocketed the public debt via dramatic reductions in tax rates for the wealthy.
Obviously, there are fundamentally two ways to balance a budget: you either increase revenue ( i.e., raise taxes) or cut spending. Republican leadership (to the extent there is such a thing) has focused on the latter – specifically military spending (think Ukraine) and welfare services such as Social Security and Medicare.
I have read more than one article that suggests this is all much ado about nothing because any such legislation passed by the House would fail in the Senate or be vetoed by Biden.
But those writers miss the point. The Republican plan is a repeat of the hostage-taking exercise the hard right used in the Speaker election. Instead of passing a bill reducing those expenses – a bill that would certainly fail – the plan is to refuse to raise the debt ceiling. In the past negotiations have always yielded a compromise. But one of the terms of the McCarthy hostage-taking is said be that the new Speaker refuse any agreement on the debt ceiling issue unless the Democrats agree to reduce spending on the military budget, Social Security, and Medicare.
A failure of a three-branch compromise would cause a shut-down of the government. Arguably, the Treasury would not be able to pay its bills. Hospitals, physicians, Social Security recipients would not get their checks, (and the Ukrainians would not get their howitzers).
But this is not as simple as it sounds. Government spending is different from household spending. Government spending is dictated by previously enacted legislation and by the Constitution of the United States.
The legislature has, over the years gone, enacted legislation establishing Social Security and Medicare at specified rates. That makes it a government debt. The Constitution has something to say about government debt. The 14th Amendment, Section 4 reads, "The validity of the public debt of the United States, authorized by law, … shall not be questioned."
Can the obligation of the Treasury to pay out Social Security and Medicare “as authorized by law” simply be negated by the will of the hostage takers? Not so fast. A number of Constitutional scholars have opined that the Treasury would be Constitutionally obliged to pay legislatively authorized Medicare and Social Security debt whether such payments exceeded the debt limit or not.
If, as I expect, the administration insists on poking a hole in the debt ceiling to make Social Security and Medicare payments, we will for sure have a court battle. I have little doubt the political views of the majority of this Supreme Court would result in a Court ruling against making those Social Security and Medicare payments.
That would, I suggest, raise an interesting question that, so far as I have read, has not been addressed by scholars.
Some history: In 1832, there was a legal dispute about whether the State of Georgia had the right to decide whether white men could reside on Indian territory. The case went to the Supreme Court. The State of Georgia took the view that inasmuch as the Indian territory was within its boundaries, only the state had jurisdiction, and refused even to appear in the Supreme Court. The Supremes took the opposite view, and Chief Justice John Marshall wrote the Court’s opinion ruling against Georgia’s position. President Andrew Jackson, upon learning of the decision, is reported to have said “John Marshall has made his decision, now let him enforce it."
So I cannot help but wonder whether or not this would be an occasion to give this Supreme Court,— which has the lowest public approval rating anyone can recall, — the black eye it deserves.
What if the conservative majority of the Court ruled that the Constitutional sentence quoted above does not apply to these circumstances and the Treasury could not cut the checks?
And then what if the Secretary of the Treasury, with the full approval of the President of the United States, said, “I have a Constitutional obligation under the 14th amendment to pay out Social Security and Medicare debts to citizens. I am going to do my duty and make those payments. Samuel Alito has made his decision, now let him enforce it.”
The result? After November, 2024 we would no longer need to worry about Kevin McCarthy!
A bientot!
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