I think you're right. If I'm sitting on the court, I might accept whatever flimsy loophole the Executive Branch provides, and say, "Congress is free to clarify their intentions at any time to resolve this impasse".

Now the ball is in the House's court. Are they going to vote to positively default? (Rather than passively not act before some deadline, like how they do it now?) I bet not.

Given the 14th amendment exists and its purpose was in fact to assure the treasury would always pay its debts and the constitution overrides any law, it wouldn’t be a very flimsy loophole to say congress would need to clarify possible up to and including an amendment. The debt ceiling isn’t specifically about paying debts but about authorizing new borrowing. So while the treasury may not be able to legally issue debt to pay existing debt, it would be required to pay debt. This is of course the starve the beast goal of the debt ceiling to force spending cuts to pay the debt by making the debt payment so vast that the federal government would become a shadow of itself in that eventuality. However since the law has never been contested it’s not clear it would work.

But the treasury of course has many other ways of paying debts, including simply issuing currency. Even if the 14th amendment doesn’t invalidate the debt ceiling, the treasury still must pay the debts, and doesn’t have to do so by cutting spending. It would however be more orderly and strictly better for everyone if the 14th amendment did invalidate the debt ceiling in a situation that questioned the treasuries ability to make whole debts without resorting to disruptive measures.

The 14th amendment doesn't say the Treasury must always pay its debts. It says everyone has to act as if the Treasury will always pay its debts. It could default tomorrow, and you'd be constitutionally required to accept T-bills at face value anyway.

"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."

It is strangely worded, but I think it could be interpreted to also mean that the government shall not do anything that would call the validity of the debt into question.

It doesn't really make sense to pass an amendment that tries to mandate the perception of the validity of the debt. if the government stops honoring it, then the invisible hand of the market will consider it invalid.

That would be a reach. The non-reaching interpretation is the face value one: the validity of the public debt ... shall not be questioned. It's hardly the most anti-market law around - the US has farm subsidies, and some countries even have price controls.

What would that even mean though? Bonds are sold at auctions, and already sell at a price different from face value. The difference determines the yield.

You could have "no one questioning the validity" but people are still going to either not participate in the auction, or bid only for high yields.

One of the factors in evaluating a case is whether the proposed remedy is feasible or even possible. I'm not sure what forcing everyone else to "consider valid" a government bond that is not being honored.

Do you arrest and imprison anyone who reveals that they are not getting paid on their bond at maturity? Do you force buyers to buy it at face value, even though they know it will not be honored?

I don't think that's a reach. There's a credible argument that it compels the President to continue to service debts

I think it’s even stronger than that. It doesn’t just compel the president, which is a political office, but it compels every civil servant in the treasury as it’s a constitutional mandate. So in theory even if the president declares no debt payment, the treasury would still make the payments.

On my latest re-reading of it in your comment, it sounds more like it's saying, "shut up, you lost, the measures taken to suppress your rebellion are valid, move the frak on".

The context at the time was doubt that the treasury would pay its debts, because it was widely viewed that it would not post the civil war. The language is not clear, but the intent as I understand it from a historical perspective is pretty well understood to mean the treasury must always pay its debts. The language continues to clearly delineate debts accrued by the confederacy (insurrection) as NOT payable, which further enforces the topic is payment of debt.

You have to recall the context in which those provisions were passed: coming out of the Civil War, you had both Union and Confederate bonds and other public debts used to finance the war. Amongst the other conditions upon which the rebellious states were re-admitted to political authority were the cancellation of Confederate debt (the Union was not going to pay for the wages of rebellion) and the guarantee of Union debt (so that Southern and Western states could not collude in Congress to prevent repayment of that debt), both of which were written into the Public Debt Clause. So the clause was absolutely meant to restrict the government's ability to repudiate debts other than those explicitly excluded, because you had a Republican Congress working to tie the hands of a potential future Democratic one. (N.B., I'm not exactly sure what you mean by "required to accept T-bills at face value" -- you can buy T-bills and TIPS on the secondary market at whatever price the market sets. If the US were to start defaulting on its debt, then that price ... would not be as stable as it has traditionally been.)

> I think you're right. If I'm sitting on the court, I might accept whatever flimsy loophole the Executive Branch provides, and say, "Congress is free to clarify their intentions at any time to resolve this impasse".

See, that's why you aren't on the Court.

What the kind of people that actually get put on the Court would mostly due to allow the action without endorsing its legality would be:

(1) Be sticklers about standing and other threshold issues (ripeness, mootness, etc, but standing is the big and most useful one here); almost no litigant other than Congress acting as a whole will have the kind of particularized injury to allege that would give them standing to challenge paying the debt (an actual creditor might have standing the other way, but that's not the scenario we’re concerned with.)

(2) If you really can’t kick the case for standing or other threshold issues (well, first, amateur, but...) then invoke the “political question doctrine” to avoid it anyway.

> almost no litigant other than Congress acting as a whole

The House as a whole would probably have standing.

Oh you just gave me an idea for another hypothetical. If the House was unable to elect a Speaker during the time the debt ceiling was breached, would they even be capable of bringing any action before the Court?

One stalemate averted by another!

It is only a rule of the House that limits business that can't be done pending election of a speaker (and before the recent crisis was resolved, one of the solutions proposed was changing the House rules to allow more with an Acting Speaker), so, not in any way that the House itself couldn’t bypass, even without electing a Speaker.

Haha. Well obviously that what I meant by my shorthand phrasing!

But like, for other people who aren't so smart, thanks for detailing the mechanisms I would use :)

Agreed. I think it would most likely be "this is a political question, we aren't going to intervene".

If there’s anything I’ve learned in the past decade is that way, way too much of our government relies on people in power being rational actors with good intentions.

If they wanted to raise hell they could simply make the worst decision and there’s nothing that can be done about it.

Governments, like societies in general, are just aggregations of human beings. No facade of legalisms can ever fully overcome that fundamental truism.

I've always thought of it as an attempt to engineer peer-pressure. Build institutions that recruit like-minded people in the hopes that when faced with tremendous pressure, the group can force individuals to fall in line around a predetermined principle.

What they didn’t foresee is that some people are immune to peer pressure because their goal is to inflict harm.

My take is a bit different to yours. I think they didn't anticipate a concerted effort to undermine like-mindedness of the people comprising institutions in an attempt to make an egalitarian society. It's not that long ago that people appreciated the difference between social exclusion and custodianship, and recognized that some amount of gatekeeping is essential to institutional function.

To be clear, that same gatekeeping can be and has a times been perverted into social exclusion, but the problem at hand IMO is the discarding of the baby with the bathwater.

I think the fancy way of saying this is that it attempts to solve "coordination problems".

“John Marshall has made his decision, now let him enforce it.”

The Supreme Court has been ignored before.