As the White House and congressional negotiators fail to stop the U.S. from hurtling toward an economically "catastrophic" default, a labor union representing nearly 75,000 government workers on Friday asked a federal court to take emergency action.
Treasury Secretary Janet Yellen has warned that if Congress doesn't raise the debt ceiling—which House Speaker Kevin McCarthy (R-Calif.) and other GOP lawmakers refuse to do without spending cuts targeting working people—the government could run out of money to pay its bills as early as June 1.
That rapidly approaching deadline and fruitless negotiations have led a growing number of lawmakers and legal scholars to urge President Joe Biden to invoke the 14th Amendment to the U.S. Constitution, which states that "the validity of the public debt... shall not be questioned."
Friday's request for judicial intervention stems from a lawsuit—which cites the 14th Amendment—that attorneys for the National Association of Government Employees (NAGE) filed in the U.S. District Court for the District of Massachusetts on May 8. While Biden and Yellen are named as defendents, the aim of the case is to have the debt limit law declared unconstitutional.
"This litigation is both an effort to protect our members from illegal furloughs and to correct an unconstitutional statute that frequently creates uncertainty and anxiety for millions of Americans," NAGE national president David Holway said earlier this month. "The debt ceiling has become a political football for certain members of Congress. If Congress will not raise the debt limit as it has nearly 80 times before without condition, it leaves no constitutional choice for the president."
"Congress' failure of will to act is not justification to violate the Constitution," added Holway, just days after his union endorsed Biden for reelection. "But it is the reason this case had to be filed to protect the American public, federal employees, and our Constitution."
The New Republic staff writer Timothy Noah wrote a couple of days after the first filing that "the NAGE lawsuit invites us to think of Congress as a body that's not merely able but obliged to govern. You don't like how the president spends the taxpayer's money, Mr. Speaker? Then pass a budget, for Chrissakes, and stop playing childish games."
As The American Prospect executive editor David Dayen noted later that week—citing University of Missouri law professor Tommy Bennett—because the president "has the option of minting the trillion-dollar coin to cover obligations, or issuing premium bonds known as consol bonds," he has "a way out of the lose-lose choice of violating one law or the other," which could imperil the case.
Still, Dayen has advocated for the lawsuit to move forward quickly. Early Friday, he highlighted that if the case could be decided soon, "there would be no legal chaos," but lawyers for NAGE "inexplicably" have not sought a temporary restraining order or preliminary injunction that would force Judge Richard Stearns—an appointee of former President Bill Clinton—to act urgently.
David gets results!! https://t.co/c7ztexnB0C
— ryan cooper (@ryanlcooper) May 20, 2023
Later Friday, the union's legal team did just that—asking the court for an order of preliminary injunction.
Dayen broke down the filing in a series of tweets, then concluded by pointing out that representatives for Biden and Yellen aren't currently required to even respond to the case until days after June 1, the so-called "X-date."
DOJ can and SHOULD admit that the plaintiff is right. The Administration is not required to defend the legally indefensible. https://t.co/0a8IvaeJy1
— Jeff Hauser (@jeffhauser) May 20, 2023
As Biden met with other world leaders at the Group of Seven summit in Hiroshima, Japan on Friday, debt ceiling talks in Washington, D.C. stalled for a bit, then resumed. But negotiators' evening meeting ended without a deal, according to CNN, and "sources at the White House and on Capitol Hill said there were no debt ceiling meetings scheduled for Saturday."
Biden, who is set to head back to D.C. on Sunday, struck an optimistic tone, reportedly saying during a Saturday press conference in Hiroshima that "I still believe we'll be able to avoid a default and we'll get something decent done."
The president said earlier this month that he had been "considering" the 14th Amendment, but "the problem is, it would have to be litigated," so "I don't think that solves our problem now."
Despite growing demands that Biden swiftly end the GOP's economic "hostage-taking" by invoking the amendment—including from at least 11 senators and 66 House progressives this week—Politico's Adam Cancryn reported Friday that publicly, "the White House remains resistant... And privately, its message has been even blunter."
In line with reporting earlier this month by Washington Post White House economics reporter Jeff Stein, Cancryn wrote:
Senior Biden officials have told progressive activists and lawmakers in recent days that they do not see the 14th Amendment... as a viable means of circumventing debt ceiling negotiations. They have argued that doing so would be risky and destabilizing, according to three people familiar with the discussions.
The White House has studied the issue for months, with some aides concluding that Biden would likely have the authority to declare the debt limit unconstitutional as a last-ditch way to sidestep default. But Biden advisers have told progressives that they see it as a poor option overall, fearing such a move would trigger a pitched legal battle, undermine global faith in U.S. creditworthiness, and damage the economy. Officials have warned that even the appearance of more seriously considering the 14th Amendment could blow up talks that are already quite delicate.
"They have not ruled it out," one White House adviser told Politico. "But it is not currently part of the plan."
As McCarthy left the U.S. Capitol Saturday evening, he said that "I don't think we're going to be able to move forward until the president can get back in the country," according to ABC News.
The White House press secretary, Karine Jean-Pierre, said in a statement Saturday evening that after agreeing with Biden that any budget deal would need to be bipartisan, "last night in D.C., the speaker's team put on the table an offer that was a big step back and contained a set of extreme partisan demands that could never pass both Houses of Congress."
"The president has over and over again put deficit reduction proposals on the table, from limits on spending to cuts to Big Pharma profits to closing tax loopholes for oil and gas," she added. "Let's be clear: The president's team is ready to meet any time. And, let's be serious about what can pass in a bipartisan manner, get to the president's desk, and reduce the deficit. It is only a Republican leadership beholden to its MAGA wing—not the president or Democratic leadership—who are threatening to put our nation into default for the first time in our history unless extreme partisan demands are met."
All caveats about deals usually being struck before everything falls apart, but this doesn't look like a negotiation with an endgame. pic.twitter.com/s5ZLY6WXfO
— David Dayen (@ddayen) May 20, 2023
Ahead of Jean-Pierre's statement Saturday, Stein and his Post colleagues reported—citing sources with knowledge of the talks—that "Republican negotiators rejected a White House offer to limit spending next year on both the military and a wide range of critical domestic programs as part" and "are instead pushing for higher defense spending and more significant domestic spending reductions."
This article has been updated with additional comment from the White House and reporting by ABC News and The Washington Post.
