Members of Congress push president to use 14th Amendment in debt crisis

WASHINGTON — Progressives are pushing hard for President Biden to take the unprecedented step of invoking the 14th Amendment as a way to avoid financial calamity if the White House and House Speaker Kevin McCarthy do not strike a deal on the debt ceiling in the coming days.

The lawmakers and legal scholars argue that the Reconstruction-era amendment — to ensure debts were paid after the Civil War — trumps the debt limit statute, or the law that sets the dollar amount of how much the U.S. government can borrow to pay its bills.

Section 4 of the amendment states, “The validity of the public debt of the United States, authorized by law, including debts incurred … shall not be questioned.”

“The text of the 14th Amendment, which says that the debt of the United States ‘shall not be questioned,’ … nothing questions that more than a default, or frankly, a debt limit that may make it impossible practically to pay the debt of the United States,” Democratic Sen. Sheldon Whitehouse of Rhode Island said.

A unilateral action by the president to proceed as though the U.S. has not run out of borrowing authority would not bypass Congress, the chair of the Senate Committee on the Budget and others argue. Rather, it would be a choice by the U.S. leader to follow the letter of the 14th Amendment and continue abiding by the numerous spending laws passed by Congress.

“It’s not ‘How can the Biden administration go around Congress?’” UCLA law professor Joseph Fishkin argued. “The problem is Congress has legislated contradictory things. They’ve said you must spend this money and also, these are the taxes that you must collect. And also, here’s the debt ceiling.

“A lot of people seem to be assuming that if the administration is kind of stuck in that dilemma where you have to violate one of those statutes, for some reason, the one that has to be violated is the one on spending money.”

Biden and McCarthy met this week to continue negotiations but still hadn’t reached an agreement to raise the nation’s borrowing limit.

Biden said Sunday that he’s “looking at the 14th Amendment, as to whether or not we have the authority.”

“I think we have the authority,” he said. “The question is: Could it be done and invoked in time that it could not — would not be appealed and, as a consequence, pass the date in question and still default on the debt. That’s a question that I think is unresolved.”

Treasury Secretary Janet Yellen also expressed concern about whether the administration had time to invoke the amendment as a solution.

“It doesn’t seem like something that could be appropriately used in these circumstances, given the legal uncertainty around it, and given the tight time frame we’re on,” she said. “So my devout hope is that Congress will raise the debt ceiling.”

Weeks earlier at the White House, the president said he was “considering” the amendment but “the problem is, it would have to be litigated, and in the meantime without an extension, the (situation) would still end up in the same place.”

But a question remains over how the stock market would react to even a whiff of the courts being the ultimate decider on the 14th Amendment.

“Some people assume that the president’s power to issue new debt would be resolved legally by the Supreme Court, but it would be resolved, for practical purposes, by the bond markets before the courts could even act,” Michael McConnell, director of the Constitutional Law Center at Stanford Law School, said. “And the resolution would not be a happy one.”

McConnell wrote that the idea that the president could preempt Congress’s power of the purse as “far-fetched.” He predicted a flood of lawsuits would follow a default, which would have wide-ranging consequences for anyone who relies on the federal government for income, including Social Security recipients, disabled veterans, military contractors and so on.

The National Association of Government Employees, which represents 75,000 federal employees under the umbrella Service Employees International Union, has already filed suit in a Massachusetts federal court on behalf of members who will lose income and not be able to pay union dues as a result of a default.

The group filed suit, in part, on the grounds that allowing the Treasury to prioritize certain payments over others during a default violates the separation of powers. In other words, Congress makes the spending decisions, not the president.

Dozens of progressive House Democrats sent a letter to Biden May 19 urging him to invoke the 14th Amendment. Georgia U.S. Reps. Hank Johnson and Nikema Williams signed onto the letter.

Independent Vermont Sen. Bernie Sanders and 10 Senate Democrats also sent a letter to the president advocating for unilateral action. Those who signed it included Whitehouse and Tina Smith of Minnesota, Jeff Merkley of Oregon, Jack Reed of Rhode Island and John Fetterman of Pennsylvania.

“Republicans’ unwillingness to consider one penny in new revenue from the wealthy and large corporations, along with their diminishment of the disastrous consequences of default, have made it seemingly impossible to enact a bipartisan budget deal at this time,” wrote the senators, who sent the letter May 18. “We write to urgently request that you prepare to exercise your authority under the 14th Amendment of the Constitution.”