There are plenty of inherent problems with using the discharge petition apart from Republicans being Republicans, as Rep. Brendan Boyle (D-PA), the top Democrat on the House Budget Committee, explained to the WSJ on C-SPAN and on MSNBC.
“Bottom line,” Boyles says he’s telling colleagues, is “people who may think it will be easy to utilize are mistaken.” The first problem is time. It requires a full 30 legislative days for a bill to be introduced in committee before lawmakers can move to discharge. So 218 signatures and 30 days. As Boyle explained on C-SPAN, 30 legislative days “means two-and-a-half to three months in real calendar time.” Then there’s another nine legislative days on the front end after a bill has been successfully discharged before it can be considered, “and then there are stalling tactics that a speaker could use,” Boyle added.
Additionally, the discharge petition can only work on House-originated bills; Senate bills are not eligible. If the House managed to successfully pass a debt ceiling increase with a discharge petition, the Senate would then have to pass that bill—any changes made wouldn’t be considered there. Let’s just say this is not the only means of dealing with the debt ceiling that President Joe Biden and Democrats should be considering.
As Boyle told the C-SPAN audience, “[W]e should shift focus on where it should be. It is the House Republican Leadership. Kevin McCarthy is responsible and Republican leadership are responsible to do the right thing and raise the debt ceiling, as we have done almost 100 times in the last 100 years.” Pressure has to remain on GOP leadership to do this, and Democrats have to be open to any other option in order to exert that pressure.
Biden can take executive action and should signal that he is open to doing so, since the GOP House has already proved what a total shit show it will be. There’s the trillion-dollar platinum coin idea: that the Treasury mint a coin, say it is worth $1 trillion (or more) and use it to repurchase the U.S. Treasury debt held by the Federal Reserve. That would bring the debt level down, interest payments would continue, and all other spending obligations would be covered. This is absolutely legal; a 1995 law allows it. If a Republican wanted to take Biden to court over it, fine.
Biden could also invoke the 14th Amendment, specifically Section 4, which says “the validity of the public debt of the United States, authorized by law … shall not be questioned.” As in: The U.S. paying its debts is set out in the Constitution as obligatory and no one, particularly the Congress, can get around that and really, there shouldn’t be such a thing as the debt ceiling in the first place because the Constitution says so. That really isn’t a radical proposition. It’s right there. In the Constitution.
Another option University of Florida law professor Neil Buchanan and Cornell law professor Michael Dorf laid out in series of papers and summarized by Vox is for President Biden to ignore the debt ceiling: “respecting Congress’s taxing and spending powers while ignoring its debt limit” as the “least unconstitutional” option. The Treasury would just go on servicing the nation’s debts, because the president is obligated to do so. They argue “that when Congress creates a “trilemma”—making it impossible for the President to spend as much as Congress has ordered, to tax only as much as Congress has ordered, and to borrow no more than Congress has permitted—the Constitution requires the President to choose the least unconstitutional path.” That means “spending and taxing laws must still take precedence over the debt ceiling. Accordingly, the debt ceiling is effectively a dead letter, and both Congress and the President should treat it as such.”
Another executive path that is sort of like the platinum coin is posited by Steven Schwarcz, a professor at Duke Law School. He’s argued that the Treasury could use its power to create a new “special-purpose entity” that could issue newly created securities to pay for government spending. They wouldn’t be Treasury bonds and thus wouldn’t be subject to the debt limit. Schwarcz argues that plenty of state and local governments create these kinds of entities to finance projects, so why not the federal government?
These ideas have been dismissed as being extreme or radical over the past decade-plus in which Republicans decided that playing with the debt ceiling was fun. None of these ideas are as extreme or radical as even questioning the idea that the nation has to keep servicing its debt. That it has to pay for the obligations it has already incurred, including things like Social Security payments, and paying the troops in the military, and all the other things that end without some resolution to this problem.
It should have been dealt with during the lame duck session. The White House and Senate Democrats dramatically underestimated the dysfunction and the nihilism of House Republicans before the election, and some are now overestimating McCarthy’s ability to control them. “[I]f he wants to keep the majority,” Sen. Chris Murphy (D-CT) recently said about McCarthy, “he’s got to shed that brand [of dysfunction]. There’s only one way to shed that brand, and it’s to get some things done.”
That’s also assuming McCarthy puts getting things done over allowing the Freedom Caucus to blow the whole system up so they let him continue to hang around. Democrats can test that: They can pursue a discharge petition and try to do it the legislative way, but they should make absolutely clear that if he doesn’t bring the House along, the White House will take care of the problem without him.