“All the laws but one”
Lincoln's success, and Truman's failure, illuminate today's debt ceiling crisis
On many days I do two things: research history and cover the news. When I co-host Morning Edition the work starts at four o’clock in the morning, which means that some days (though not always) I am done with the radio by early afternoon. That allows a bit of time to visit the Library of Congress or write before I have to pick up kids from school. Naturally, the news makes me think about history, and history makes me think about the news.
Differ We Must, due out October 3, tells Lincoln’s life story through his meetings with people who differed with him. If you plan to buy it, I hope you’ll pre-order now; it’s an enormous help. In any case you will understand that Lincoln is often on my mind in these divided times.
Senator Sheldon Whitehouse made a statement about the debt ceiling crisis on Wednesday, and his word choice seemed to point to the example of the sixteenth president.
President Biden, House Speaker McCarthy and others have been negotiating to extend federal borrowing authority and avoid default. McCarthy and his fellow Republicans are refusing to pay the bills unless they gain concessions on future spending.
Senator Whitehouse, a Democrat, argued on Twitter that the president should disregard them and pay the bills anyway, invoking a provision of the Constitution’s Fourteenth Amendment.
The post-Civil War amendment says the debt of the United States “shall not be questioned.” Whitehouse, among others, asserts that this gives the president all the power he needs. So, he says, does another clause saying the president “shall take care that the laws be faithfully executed.”
The faithful execution clause of the Constitution requires the president to faithfully execute all the laws a default would disrupt, not just the one law that causes default and disrupts the faithful execution of all the others.
When Whitehouse says Biden should uphold “all the laws” and not just “one,” his words echo Lincoln’s.
In 1861, shortly after Lincoln took office, Southern states went into rebellion. Maryland rebels tried to destroy railroad bridges leading to Washington, and Lincoln approved the insurgents’ capture and detention.
Roger Taney, the Chief Justice of the Supreme Court, ordered one suspect released. The Constitution mandates the writ of habeas corpus, essentially that the government may not arrest someone without producing them in court to face charges. The writ can be suspended “in cases of rebellion,” but Taney’s reading of the Constitution held that only Congress could do this. Lincoln decided that he could suspend the writ. He ignored Taney and left the prisoner locked up at Fort McHenry in Baltimore.
Lincoln said he had a duty to face down the rebellion: “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?”
Congress eventually made the point moot—passing a law that granted Lincoln authority to suspend the writ and arrest suspects when the war required.
But Lincoln was taking an extraordinary course, deciding that he would interpret the Constitution himself rather than relying on the Supreme Court. It’s the sort of thing you may cheer when it’s done in a movie, or by a president of your party, but maybe not otherwise.
Other presidents who tried such things had far less success. In 1952, President Harry Truman tried to stop a steelworkers’ strike, saying the government needed steel to supply armies fighting the Korean War. He ordered the government to seize and operate the steel mills, saying, “The president has the power to stop the country from going to hell.”
The Supreme Court soon ruled that he did not have the power. He lacked authority to seize private property. Truman, unlike Lincoln, was forced to comply.
These two cases are relevant now. Senator Whitehouse suggests that Biden could act like Lincoln, follow his view of the Constitution, and presumably dare Republicans to sue him.
Biden has told reporters that he is studying the idea, but “the problem is it would have to be litigated.”
He wants to know where the courts stand, and that would take too much time to find out. If Biden acted first and the courts later threw out his action, he would be left to ignore them—or else accept the default he was trying to avoid. Neither would be much of a choice for a president who says he wants to restore democratic norms and bipartisan government.
Biden prefers a deal with Republicans, however much they differ. In a video message, he spoke as if he expects one: “We’re going to come together and do the right thing for the country, because we have no alternative.”
The president has left open the possibility that he might invoke the Fourteenth Amendment during the next debt ceiling crisis, when there may be more time for a court battle.
Behind that idea is a reality: however this crisis is resolved, there’s a good chance of another one.