Everyone’s So Worried About The President Getting Sued About the Debt Ceiling, No One Seems to Have Noticed He Already Was

As the ominous X-date approaches—the date when the United States will hit the debt ceiling—the media can focus on little else. Unfortunately, as we’ve covered before, much of the coverage is treating the situation as a game of political chicken. Far too many journalists are breaking out their preferred horse-race style coverage as if this is just another national political story. But it isn’t, as The American Prospect’s David Dayen has explained. Holding the debt limit hostage is a departure from the political norm; it is not just another procedural fight that comes up every so often. In truth, the only other time the debt ceiling has been used in this way was in 2011, when President Obama agreed to disastrous terms that hamstrung the federal government for a decade. 

By treating this as just one more Democrats versus Republicans story, the media is drastically understating how unprecedented this moment is. It’s trying to apply the usual options to a situation well outside of what they are meant for. The pervasion of this thinking is dangerous; if this is more of the same, then there are very few avenues available to the White House. The more media coverage feeds into a political zeitgeist already predisposed to normalize Republican tricks while trapping Democrats in the shackles of convention, the more Biden’s options seem artificially constrained. 

If the White House caves to demands on spending freezes, agencies that do the important work of keeping people from dying due to unsafe working conditions, stopping corporations from poisoning water supplies, ensuring that our air is breathable, and many other urgent priorities beyond that will all find themselves languishing. For decades, the federal executive shirked its responsibilities and let corporations run rampant; there’s a lot of catching up to do. But instead of rebuilding the government, Biden would be shrinking it through attrition as even inflation adjustments become uphill battles. 

This is a time when everything needs to be on the table. And while some outlets have been willing to humor the exploration of other possible solutions to the debt limit problem — such as the minting of a trillion dollar coin or the issuance of premium bonds — most coverage seems to presuppose that a deal, no matter the losses it will incur, must be done. 

To be fair, there has been some serious engagement with the idea of invoking the 14th Amendment, which has a clause saying the debts of the United States cannot be undermined, but even those discussions fall short of actually indicating how that can be done (if the workaround isn’t already being outrightly dismissed).

The President himself also seems to misunderstand the mechanism, recently talking about the risk of winding up in court if he tries to unilaterally skirt the debt limit. Inexplicably, what hardly anyone seems to acknowledge is that there is already an active court case dealing with exactly this question. The National Association of Government Employees (NAGE) is suing President Biden and Secretary of the Treasury Janet Yellen on the grounds that complying with the debt limit will make the U.S. in violation of other laws. NAGE argues that compliance with the debt ceiling would violate the separation of powers by allowing the President to pick and choose what gets funded by what revenues the federal government will have without issuing more debt, which would mean breaching the law in at least a couple of ways while undermining NAGE members’ jobs (thus giving them standing to sue). To start, Biden would have to violate the current budget to uphold the debt ceiling, something that he is not allowed to do. NAGE’s lawsuit takes this a step further, arguing that to do so, Biden would functionally be using an illegal line item veto.

The case is being heard in the Massachusetts District Court by a Clinton appointee. That means that the President already has a chance to litigate this very issue in a relatively friendly setting. And yet both Biden and most of the media remain petrified by the threat of having to take the issue to court. We’re still trying to understand why no one is talking about this.

What’s even more surprising about this absence of attention is that the NAGE suit slots perfectly into the sports-obsessed framings that have come to dominate debt ceiling coverage, and political journalism more generally. A last-minute buzzer beater — coming from an underdog with everything to lose — that breaks the deadlock between two bitter rivals is a narrative that would give the NBA’s Eastern Conference Finals (conveniently enough, also partly taking place in Boston) a run for their money.

Yet, the media instead seems to be more interested in doomsday default scenarios and daily play-by-plays of what — or, less euphemistically, who — President Biden, Speaker McCarthy, and their respective parties are willing to sacrifice in order to avoid nonpayment. 

A search on TVEyes, a database that aggregates radio and television clips, reveals how inadequately this issue has been covered. When we searched for “National Association of Government Employees” all that turned up from both mediums were brief mentions on the day of suit’s filing, but very little updates on its progress. A suit, we might add, that was filed on May 8, requested a motion for preliminary injunction one week later, and will begin hearings on May 31. This is also despite the fact that constitutional law scholar Lawrence Tribe appeared on two separate MSNBC programs both the day of, and a week after, the suit was filed to discuss 14th Amendment’s invocation as a solution to the debt ceiling. 

Coverage has been woefully scarce in print media as well. The New York Times, Wall Street Journal, and the Washington Post, for example, have written about the NAGE case only once each, despite each having published dozens of articles to date on the debt ceiling. The Times has even written more on how markets would hypothetically react to a constitutional challenge of the debt ceiling than the actual suit which would materialize that scenario. While it is definitely important to keep the public abreast of the negotiations, updating them on the status of an ongoing case that could invalidate the need for those negotiations altogether seems equally as important. 

Our critique is not that outlets shouldn’t follow the negotiations closely. A first-in-history default on U.S. debt payments would be catastrophic both domestically and globally. Likewise, a deal that offers too many concessions to deficit hawks would ravage vulnerable Americans and reverse the steps the legislators have taken towards recovering from the most intense phases of the COVID-19 pandemic. The stakes could not be higher. But it is because the stakes are so high that the media has a responsibility to analyze this crisis comprehensively. What good is such constant, seemingly by-the-minute, reporting if notable developments in the debate go completely ignored? Rather than oversaturating the collective conscience — and running the risk of unduly influencing key actors — with the constant play by play, journalists should instead prioritize thoroughly reporting on the actual stakes of what’s being negotiated for the American people. The outcomes of this emergency could very well depend on it. 

The less coverage there is of the lawsuit, the more the perception that Biden is cornered grows. And as that perception sinks into the Washington zeitgeist, the administration will have fewer and fewer alternative solutions being offered up. The fact of the matter is that there’s a way out of this that would not mortgage the futures of the millions of people who rely on government programs that stand to be cut. Everyone wants to talk about the hypothetical where the administration gets sued, but no one wants to talk about the very real case where he already is being sued. All that needs to happen is for President Biden to offer no defense in the case, and he can get a clarifying opinion from a court not inclined to enable reckless Republican brinkmanship.

Unfortunately, the less this gets talked about as a real solution, the more it gets drowned out by the let’s-make-a-deal narrative that mainstream outlets are so enamored with.