Tuesday, May 23, 2023

Answer:

Congress, because Art. I gives them the purse strings.

That’s the argument for standing and the challenge, anyway; at first blush. So much depends on what Biden does and how he does it. I can see that going to court; through what lawyers, though? Can Congress authorize a contract with a law firm without authorizing a debt ceiling increase to start with? Can it even ask DOJ to represent them, without tacitly admitting Biden’s authority? Payment would, I think, have to go through the Treasury, which would either need authorization for the expenditure (i.e., raise the debt ceiling) or DOJ would need the same.

In fact, how does Congress hire lawyers to present its challenge to Biden’s actions? The Supremes might have original jurisdiction (I’m honestly not sure), but would they issue an injunction against the Secretary of the Treasury? Not because of SecTreas, but because of grounds for an injunction?  Seems an injunction would require deciding the merits of a case of first impression, so....

Biden has lawyers already thinking about this. I’m hardly saying I have a secret insight. But it’s an interesting question: if the debt limit means the Treasury can’t pay the bills, how does Congress incur bills to pay lawyers to challenge Biden’s authority under the 14th Amendment as he understands it? Further, if the government is shut down, the courts are shut down. Not the judges, but the clerks and everyone else. Unless the courts get the Treasury Secretary to declare the court personnel “essential.” Meaning they work without pay….*

Yeah, I don’t see a scenario where Congress wins. And raising a legal challenge just raises the question anew of what the debt ceiling means.

May you live in interesting times.

*I can’t recall if they have been in the past, or if courts just closed. My guess is, they closed.
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