Limits on power represent a feature, not a bug, of constitutional government
There’s some degree of consternation in Washington, D.C., these days about the so-called “14th Amendment option.” Democrats supporting it want to give President Biden a tool to avoid working with Republicans in Congress on extending the federal debt limit.
While that debate takes place in the nation’s capital, this observer notes an interesting similarity to a recent legal dispute in Raleigh. Democrats on the N.C. Supreme Court scoured this state’s constitution last year for a tool that would help the Democrat-led executive branch bypass a Republican General Assembly on a matter involving money.
In a party-line 4-3 decision in November, the court ignored precedent and constitutional history. It ruled a judge could order new state government spending on education, regardless of legislators’ wishes.
It’s likely that N.C. Democrats’ constitutional sleight-of-hand will eventually fall flat. The eventual outcome of the D.C. drama is harder to predict.
Editors at National Review Online recently took aim at the Biden team’s 14th Amendment “folly.”
“The Constitution is quite explicit: Congress, and only Congress, has the power ‘to borrow Money on the credit of the United States.’ Congress, and only Congress, has the power to raise revenue, and all bills to do so must start in the House,” NRO proclaimed in an editorial. “The Framers were quite open in designing this system to give Congress the power of the purse so that it could bring the executive to heel.”
Section Four of the 14th Amendment blocked the federal government from repudiating debts, including obligations linked to the Civil War. “But it did not, explicitly or implicitly, change the allocation of power to issue new debt,” the NRO editorial explained.
“Why is the president openly mulling seizing power from Congress? Because Biden has, as usual, let the progressives who dominate his party box him into a corner from which the only exit is to flout the law,” the national conservative publication argued.
In the N.C. case, advocates for additional state education spending have criticized the Republican-led General Assembly for failing to embrace a document called the comprehensive remedial plan. It’s a multiyear, multibillion-dollar blueprint crafted by a San Francisco-based consultant. It was designed to address North Carolina’s long-running Leandro education funding lawsuit.
The plan featured no input from legislative leaders. That’s despite the fact that the General Assembly holds the power of the purse for N.C. government, mirroring Congress’ role in the federal government.
Rather than work to win support within the halls of the General Assembly, CRP advocates took their case to four Democratic justices on North Carolina’s highest court. Those Democrats overruled their Republican colleagues. With a 4-3 vote, they decided courts could order state executive branch officials to move money out of the state treasury without legislative input.
In doing so, they repudiated the court’s own precedents. Just two years earlier, Democratic Justice Sam “Jimmy” Ervin IV had written for a 6-1 court about the General Assembly’s authority over spending.
“In drafting the appropriations clause, the framers sought to ensure that the people, through their elected representatives in the General Assembly, had full and exclusive control over the allocation of the state’s expenditures,” Ervin wrote. “As a result, the appropriations clause ‘states in language no man can misunderstand that the legislative power is supreme over the public purse.’”
The state constitution’s budget-related provisions did not change between Ervin’s December 2020 pronouncement about “language no man can misunderstand” and his Democratic colleagues’ November 2022 ruling ignoring that language. The only change was activist Democrats’ decision that Republican lawmakers could not stand in the way of their spending priorities.
There’s good news for fans of state constitutional safeguards. Voters replaced Ervin and a fellow Democrat with two new justices last November. Republicans now hold a 5-2 majority. The new court already has reinstated a lower court ruling blocking any money transfers from the state treasury that bypass the General Assembly.
The court will consider the issue again in the months ahead. It’s likely that at least five of the seven Supreme Court justices will comply with the “language no man can misunderstand.”
If so, they will secure a victory for the rule of law and limited constitutional government. They will restore the security of state government’s separation of powers.
They will also set a good example for feuding partisans in our nation’s capital. The federal government’s key actors could benefit from devoting more attention to the U.S. Constitution’s language. Its limits on power protect voters and taxpayers.
Those limits represent a feature — not a bug — within the design of the American constitutional system.
Mitch Kokai is senior political analyst for the John Locke Foundation.