The Heaven’s Gate Option: Congressional Democrats Beg Biden to Make Them Constitutional Nonentities

Below is a slightly modified version of my column in The Hill on the call of Democrat members for Joe Biden to circumvent Congress and simply raise the debt limit unilaterally. It is more than a flawed constitutional theory. It is an abandonment of the core premise of our constitutional system that each branch would jealously protect its own institutional interests and powers. It is reminiscent of when Democrats applauded wildly when Barack Obama told them that he was going to circumvent Congress entirely after it refused to approve his immigration and environmental legislation. They were applauding their own institutional obsolescence. I called it a constitutional tipping point and now Democrats are asking to be effectively stripped of their core power over the purse.

Roughly 25 years ago, many of us were shocked by the discovery of a home full of bodies of dozens of people laying in bunk beds, wearing jumpsuits and identical black-and-white Nike Decade sneakers. They were the members of the Heaven’s Gate cult who, with their leader, drank a lethal mix of phenobarbital and vodka to gain entry to “Heaven’s Gate” with the passing Hale-Bopp comet.

Few of us could understand how rational people could believe their leader that it was necessary to shed their earthly bodies to gain access to an orbiting alien space craft. Few would buy such a pitch, but these people did. Some of the men even castrated themselves as a sign of their faith.

This week, Heaven’s Gate came to mind as I watched members of Congress line up to take a step that runs against every assumption of self-preservation in Madisonian democracy: They sought to make themselves nonentities. They called upon Joe Biden to reject their very institutional existence, discard the separation of powers and unilaterally borrow and spend federal money.

At one event, Sen. Bernie Sanders (I-Vt.) released a letter to Biden on behalf of himself and nine Democratic senators “to urgently request that you prepare to exercise your authority under the 14th Amendment of the Constitution.” He was joined in this by Sens. Elizabeth Warren (D-Mass.), Jeff Merkley (D-Ore.) and Sheldon Whitehouse (D-R.I.), among others.

Obviously, these are not Nike-wearing cultists, but that only makes their actions all the more inexplicable. These are rational leaders whose desire to nullify their own existence would have seemed entirely implausible to the Framers.

A presidential “power of the purse,” however, is a fiction, only marginally more credible than the Hale-Bopp comet’s power to whisk human souls away into space.

Their argument for it is based on Section 4 of the 14th Amendment, which states, “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.”

The drafters of this amendment did not want Congress to simply dismiss its obligations to pay off the Union’s debts from the Civil War. Although the amendment is not limited to those debts, it has nothing to do with debt ceilings set by Congress. Default, after all, is not a denial of the validity of debt, but rather a refusal or failure to pay debts in time despite their validity.

Courts have long left it to the political branches to work out such differences in what is often a game of chicken with default. Moreover, as University of Virginia law professor Saikrishna Prakash recently pointed out, there is more than enough federal revenue coming in each month for Biden to avoid default by paying the interest on the debt under existing federal law. That may cause temporary problems for other spending priorities — acute problems, even — but it hardly rises to the level of a constitutional crisis.

Instead, these senators are suggesting that a president does not need congressional approval to borrow and spend trillions of dollars, even though the Constitution explicitly grants both of those powers to Congress alone. They also claim that, by demanding budget cuts as a condition of permitting further borrowing, the House is violating the 14th Amendment.

Of course, the Republican-controlled House views it differently. It has agreed to raise the debt ceiling if Biden reduces future spending. Keep in mind that the House was responding to a crippling deficit that increased by nearly $1 trillion in the first seven months of fiscal 2023.

The House was also responding to billions spent without congressional approval or support. That includes hundreds of billions in student debt forgiveness that Biden knew he could not get through Congress. Instead, he ordered it unilaterally.

So who is obstructing the payment of the debt? The White House could conceivably find a judge willing to intervene in a classic budget battle to give Biden such unconstitutional authority, but it is unlikely to be sustained on appeal. And that may not matter. President Biden has previously taken actions that he admitted were unlikely to “pass constitutional muster” but believed “at a minimum, by the time it gets litigated, it will probably give some additional time while we’re getting [billions] out to people.” Yes, he said that publicly.

Biden is not the first president to disregard legislative authority. But these members of the legislative branch are beseeching their leader to ignore them and their constitutional authority. Indeed, the most important power given to Congress under Article I is the “power of the purse.” It was the ultimate control over government. Whatever entanglements or commitments a president may seek, he must ultimately get the Congress to go along.

George Mason captured that intent when he declared that “no branch of government should ever be able to combine the power of the sword with the power of the purse.”

This purported 14th Amendment loophole would reduce the separation of powers doctrine to junk bond status.

Barack Obama previously rejected this theory and said that Congress had to give him the authority to raise the debt limit.

Despite the contrary views of Obama and a host of constitutional law professors, President Biden appears emboldened by the idea. He recently made a public promise to Democrats that, while he was willing to negotiate with the Republicans, he would not agree to “anything of any consequence.”

Biden said that his support for this novel theory is a familiar name: Harvard Professor Laurence Tribe. When Biden announced that Tribe assured him of that he could act unilaterally, some of his White House counsel must have crawled into tight fetal positions.

It was Tribe who previously advised Biden that his Administration could reestablish an national eviction moratorium that the majority of the Supreme Court clearly viewed as unconstitutional. (It allowed the moratorium issued by the Centers for Disease Control and Prevention (CDC) to expire since it had only days left). Biden then cited Tribe in calling for CDC to reimpose the moratorium . Biden admitted that his White House counsel and their preferred legal experts told him that the move was likely unconstitutional. However, he listened to Tribe at the urging of then Speaker Nancy Pelosi. It was found to be unconstitutional for obvious reasons.

Madison believed that, despite party or ideological affiliations, “ambition must be made to counteract ambition.” He established a tripartite constitutional system where checks and balances would prevent the concentration of power in any one branch or in any one’s hands.

Whatever ambition is exhibited in this latest effort, it is far removed from the institutional interests that Madison hoped would prevail over partisan interests.

Yet members are lining up for this opportunity to gut Article I, negate their own power of the purse and create an effective government not only by one branch but by one man. It is a remarkable moment. They would be destroying Congress by their own hand — and Biden didn’t even have to give them new pairs of Nikes.

As a side not to this thread, please consider the following.

Most of the federal debt is based on unconstitutional, unaccountable federal taxing and spending by the very corrupt, constitutionally undefined, feuding political parties who have pirated control of Congress imo.

"Congress is not empowered to tax for those purposes which are within the exclusive province of the States." —Justice John Marshall, Gibbons v. Ogden, 1824.
“If the tax be not proposed for the common defence, or general welfare, but for other objects, wholly extraneous, (as for instance, for propagating Mahometanism among the Turks, or giving aids and subsidies to a foreign nation, to build palaces for its kings, or erect monuments to its heroes,) it would be wholly indefensible upon constitutional principles [emphases added].” — Justice Joseph Story, Commentaries on the Constitution 2 (1833).
The congressional record shows that Rep. John Bingham, a constitutional lawmaker, had emphasized that the drafters of the Constitution had left the care of the people uniquely to the states, not the federal government.
”Simply this, that the care of the property, the liberty, and the life of the citizen, under the solemn sanction of an oath imposed by your Constitution, is in the States and not in the federal government [emphases added]. I have sought to effect no change in that respect in the Constitution of the country.” —John Bingham, Congressional. Globe. 1866, page 1292 (see top half of third column)
Pelosi: "We have to pass the bill so that you can find out what is in it." (non-FR; 6 sec.)
“Cherish, therefore, the spirit of our people, and keep alive their attention. If once they become inattentive to the public affairs, you and I, and Congress and Assemblies, judges and governors, shall all become wolves [emphasis added]. It seems to be the law of our general nature.” - Thomas Jefferson (Letter to Edward Carrington January 16, 1787)
Democrats Are Terrified Of An Educated And Informed Public (3.12.23)

In fact, given that one of the very few powers that the states have actually expressly constitutionally given to the peacetime federal government to dictate domestic policy is to run the US Mail Service, the key question that all Constitution-savvy voters need to ask themselves regarding the debt is the following.

How many corrupt political parties and unconstitutional, unaccountable trillion dollar omnibus bills does it take to run the US Mali Service?

I say none, no political parties or massive omnibus spending bills needed to deliver the mail.

"Article I, Section 8, Clause 7: To establish Post Offices and post Roads;"
"From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states, or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. The same proposition, otherwise stated, is that powers not granted are prohibited [emphasis added]." —United States v. Butler, 1936.

Note that the states can put a "permanent" stop to unconstitutional federal taxes when ALL the states effectively "secede" from the unconstitutionally big federal government by repealing the 16th (direct taxes) and 17th (popular voting for federal senators) Amendments (16&17A).

So the ultimate remedy for the unconstitutional debt is for Trump-supporting Democratic and Republican patriots to support their state lawmakers in repealing 16&17A imo.

If the repeal amendment was strictly limited to repealing those amendments, then relatively or ideally no discussion would be needed before ratification imo.

In fact, I challenge the states to "ram" the repeal amendment through the amendment process faster than Pelosi irresponsibly rammed the unconstitutional (imo) Obamacare bill through the House.

”State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress [emphases added]” —Gibbons v. Ogden, 1824.
Pelosi: "We have to pass the bill so that you can find out what is in it." (non-FR; 6 sec.)

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