May 24, 2023

There Is No ‘14th Amendment Option’ to Raise the Debt Ceiling

The only option is the constitutional one.

The latest fad theory making the rounds in some Washington precincts is that the 14th Amendment gives President Biden the authority to issue new Treasury bonds unilaterally, if that’s what it takes to pay the government’s bills. If true, it would mean that the statutory debt ceiling is unenforceable and can be breached without congressional approval. That in turn would mean that Democrats need not reach a compromise with the House of Representatives, which passed a bill to raise the debt ceiling nearly a month ago. Biden could simply bypass lawmakers and resolve the impasse on his own.

There’s just one problem with that theory. It’s codswallop.

Article I of the Constitution reserves to Congress alone the authority “to borrow Money on the credit of the United States.” Presidents cannot do so. Section 4 of the 14th Amendment makes clear that the “validity” of America’s “public debt … shall not be questioned” but it doesn’t infringe by one iota on Congress’s prerogative to authorize new debt. The clause was included in the 1868 amendment to ensure that the nation’s Civil War debts would be repaid even if Southern members of Congress later objected. It obliges the president, through the Treasury, to pay interest on government bonds as they come due.

But that has nothing to do with the debt ceiling. For all the hyperventilating about the disaster that would be triggered by a US default, the federal government collects far more revenue each month than it needs to meet its debt service. In April, for example, the Treasury reported that the government banked $639 billion in receipts and paid interest of $76 billion. Under any conceivable scenario, the government will have no trouble meeting its contractual debt obligations next month. Nor the month after that, nor the one after that.

To be sure, if the government runs short of cash, it may have to delay some payments. Maybe federal paychecks will be held up, or agriculture subsidies will go out late, or research grants will be postponed, or tax refunds will be slow-walked. But interest on the debt is always paid first, so there is no chance of a default.

When a reporter on Sunday asked Biden about invoking the 14th Amendment to borrow more money, the president should have dismissed the option as groundless. He might have recalled that when the idea was floated during an earlier debt-limit confrontation in 2011, President Barack Obama — who used to teach constitutional law — refused to consider it. Instead Biden said he was “looking into” the notion and that “I think we have the authority.” His only hesitation, he said, was that the inevitable legal challenge might not be resolved before the government ran short of funds.

Maybe Biden was just maneuvering for rhetorical advantage in his stand-off with House Speaker Kevin McCarthy. Or maybe he was just tossing a bone to the progressives in his party who are urging him to disregard the debt ceiling that Congress passed and he signed into law 17 months ago. But on the same day the president purported to “have the authority” to seize the power of the purse from Congress, his Treasury secretary did her best to downplay such talk. “It doesn’t seem like something that could be appropriately used in these circumstances, given the legal uncertainty around it,” Janet Yellen said on “Meet the Press.”

Fortunately, Biden hasn’t repeated his claim. At an Oval Office meeting with McCarthy Monday evening, the president acknowledged that Democrats and Republicans have “got to get something to sell both sides, and we need to cut spending.” That was a decided improvement over his earlier demand that spending reform and a debt-limit increase had to be kept separate. It also harked back to the longstanding bipartisan Washington norm of addressing budget deficits as a condition of raising the debt ceiling.

The 14th Amendment gambit is a red herring. In the 155 years since the amendment was ratified, no president has ever attempted to use it as a justification to bypass Congress and borrow money. How would such non-authorized bonds even be issued? And what investor in his right mind would buy them?

No: The only option is the constitutional one. It took an act of Congress to raise the debt ceiling to its current level of $31.4 trillion; it will take another act of Congress to raise it again. Neither Republicans nor Democrats will get everything they want, but Biden has now put his finger on the critical issue. “We need to cut spending,” he said. Just so. Now work out the details.

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