Why Biden is wary of using the 14th Amendment to address the debt limit crisis

If the fight with Congress over raising the government’s debt limit is such a dire threat, why doesn’t President Joe Biden just raise the borrowing ceiling himself? It’s theoretically possible, but he’s skeptical.

The administration has been searching for possible ways to allow the U.S. to keep borrowing if Congress can’t come to an agreemen t. One potential option Biden and his advisers have been looking at: Would he have the power to go around lawmakers by relying on the Constitution’s 14th Amendment in a last-ditch move to avert default?

Maybe. Biden hasn’t ruled it out, but he sees it as a problematic, untested legal theory to ensure the country can meet its financial obligations. Meanwhile, the Treasury Department says the U.S. may not be able to borrow the money it needs to pay its bills and bondholders as soon as June 1 without congressional action — and that failure could kick the country into a painful recession.

With the White House and Republican legislators at loggerheads over whether Congress should simply allow the government to incur more debt to allow the country to pay its bills — as Biden wants — or insist on pairing it with deep spending cuts — as demanded by the GOP — it’s no surprise that the president might be looking at emergency alternatives.

WHAT DOES THE 14th AMENDMENT SAY?

The amendment, ratified in the aftermath of the Civil War, is better known for its provisions addressing citizenship and equal protection under the law. It has been used by the Supreme Court to mandate racial integration in schools in Brown v. Board of Education and same-sex marriage recognition in Obergefell v. Hodges.

It also includes this clause, which some legal scholars see as relevant to today’s showdown: “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.”

Default, they argue, is therefore unconstitutional and Biden would have a duty to effectively nullify the debt limit if Congress won’t raise it, so that the validity of the country’s debt isn’t questioned.

WHY IS IT BEING TALKED ABOUT NOW?

Congress establishes the limit on borrowing, and it’s up to Congress to adjust it. But the president faces pressure to act on his own because some leading Republicans are seeing default, a likely result before long, as an acceptable bargaining tool. That has stoked concerns within the White House that House Speaker Kevin McCarthy might be unable to deliver votes for an agreement to lift the debt limit or could be ousted from his position for even attempting to doing so.

Those concerns were underscored Wednesday night during a CNN town hall with former President Donald Trump, the Republican frontrunner in 2024. “If they don’t give you massive cuts, you’re going to have to do a default,” Trump said.

The former president said he believes Democrats will “absolutely cave” and a default will be avoided. But he said a default is preferable to allowing the federal government to keep spending money like “drunken sailors.”

WHAT DOES BIDEN SAY?

Biden has said his administration is studying the idea of invoking the 14th Amendment. He said he’s skeptical that it is a viable option but the “one thing I’m ruling out is default.”

“The problem is it would have to be litigated,” he said of the constitutional reasoning on Tuesday. If the matter got tied up in court, the government could default anyway.

If and when the current impasse is resolved, he says, he is thinking about looking into whether the 14th Amendment route could be a solution to avert similar showdowns in the future.

“When we get by this, I’m thinking about taking a look at -- months down the road -- to see whether -- what the court would say about whether or not it does work,” Biden says.

His Treasury Secretary, Janet Yellen, has been more blunt, saying it could provoke a “constitutional crisis.”

HAS THIS BEEN STUDIED BEFORE?

Yes. During past debt limit showdowns, including talks in 2011 between then-President Barack Obama and congressional Republicans, White House and Department of Justice lawyers also flirted with using the 14th Amendment as an emergency solution. They were deeply skeptical that it was a viable alternative to Congress raising the debt limit, and it was never invoked.