A federal workers’ union pleading with a Clinton-appointed judge to issue an advisory opinion that a Democratic president should invoke a frivolous constitutional theory to ignore binding federal law. What could go wrong?
Politico reports that federal District Judge Richard Stearns in Boston has set a hearing for next Wednesday in a lawsuit in which the National Association of Government Employees is seeking a preliminary injunction to require Treasury Secretary Janet Yellen to continue paying government salaries (among other bills) even if the statutory debt limit (signed by President Biden in 2021) is breached. Though Yellen has dubiously claimed that the government would have to default on June 1 (the day after the hearing) if the debt limit has not by then been raised by statute, the union insists that the 14th Amendment empowers Biden unilaterally to ignore the debt limit and issue bonds not authorized by Congress to raise whatever must be raised so the government can keep spending.
Since Biden has not actually taken any action yet, and since federal courts are not supposed to issue advisory opinions — they have jurisdiction to address only concrete cases and controversies — I fail to see what there is for Judge Stearns to schedule a hearing about, let alone to rule on.
It is unclear whether, in the next week, the debt limit will be raised by Congress. As we know, the Democrat-controlled Senate (taking its cues from the Democratic administration) has failed to act on legislation passed by the GOP-controlled House that would raise the limit in conjunction with cuts that are quite modest given how out of control spending is. (The national debt accumulated from 1787 through 2000 was $5.7 trillion; in the last 23 years it has ballooned to over $31 trillion with more trillions anticipated over the next decade.)
Even if the debt is not raised by statute in the next week, it is not clear that Biden would invoke the 14th Amendment, much less that he would have the power to do so (he doesn’t) — and less still that a federal judge would have any authority to order him to do so. After all, since the Constitution vests the power to incur debt in Congress, not the president, why would a court order the president — who is bereft of debt authority — to invoke the 14th Amendment when the court could just as easily order Congress to do it?
That’s a rhetorical question, of course: The union is asking for the court to issue an order to Biden because it would be patently absurd for a lower-court judge (whose position was created by Congress) to presume to order Congress to do anything. By contrast, in this kabuki exercise, if Stearn were to issue a directive to Biden, the president would trumpet it as vindication for his recent, risible claim that the 14th Amendment does give him this power — at least for the few minutes it would take until a superior court (perhaps eventually the Supreme Court) ruled that the president obviously lacks this power . . . at which point Democrats would resume their Court-packing tantrums.
Finally, if the debt limit is not raised and Biden, in a rare moment of executing the laws faithfully, refrains from doing anything crazy, it is not clear that Secretary Yellen is correct that the Treasury would be out of options other than default. On this point, note that it would not constitute a default for the government to furlough federal employees without pay — something that has happened many times, with the furloughs invariably becoming paid time off because Congress, in finally resolving debt-limit controversies, provides for back pay. (I am not minimizing the anxiety that federal employees and their families — especially those with young children — go through when furloughs are threatened and when they happen. I worked for the government for 25 years and went through it myself. It can be rough. But every federal employee knows that his or her job is not guaranteed, and that back pay is not guaranteed if the job is interrupted. No job is guaranteed . . . but federal employees are well paid and better protected than many other workers in the economy.)
To summarize, then: At the moment, there is no case or controversy before Judge Stearns; there is no default; the president has no authority to invoke the 14th Amendment; Judge Stearns has no authority to direct the president or the Congress to take any action — no more than Stearns himself has unilateral power to raise the debt limit; no federal employee has missed a paycheck; there is no law violation in furloughing federal employees; and when federal employees have been furloughed in the past, they’ve ended up getting paid despite having not worked.
But sure, by all means, Judge, let’s have a hearing!