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By Aleks Phillips
U.S. News Reporter
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Constitutional lawyers are debating U.S. President Joe Biden's claim he could use the 14th amendment as the legal "authority" to circumvent Congress and raise the country's debt ceiling to avoid a potentially catastrophic default.
With the meaning of the 1866 amendment open to interpretation, some have argued that it's merely designed to stop the U.S. reneging on its debts—whereas not raising the debt ceiling would mean America simply stopped making payments for a period, although the debts would still be valid.
Those supportive of Biden's view say that the country's existing debts were legally authorized—either through budgets or laws requiring spending—and so failing to raise the debt ceiling would be failing to meet those debt obligations.
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There are also concerns about the implications of Biden formally claiming the Treasury has the ability to raise debt beyond the level authorized by Congress. Political analysts view this as part of Biden's tough negotiating stance to secure fewer spending cuts from House Republicans.
The Biden administration and House Republicans are negotiating to raise the debt ceiling—the amount the federal government is allowed to borrow. Republicans are pushing for spending cuts as part of any raised limit, while Biden initially pushed for a debt ceiling rise that would maintain the spending commitments crucial to his agenda.
Resolving the political differences over government spending couldn't be more pressing. Treasury Secretary Janet Yellen has warned that if the debt ceiling isn't raised, the U.S. is expected to reach its limit as early as June 1, and without intervention it could then default on the $31.5 trillion debt it owes.
Biden and House Speaker Kevin McCarthy met in the Oval Office on Monday evening for discussions over a spending deal, but they have yet to reach an agreement. Biden told reporters that everyone had agreed that a "default is not really on the table."
Section 4 of the 14th amendment states: "The validity of the public debt of the United States, authorized by law...shall not be questioned."
Drafted and passed in the immediate aftermath of the American Civil War, it intended to ensure that Congress wouldn't dismiss debts the nation had accrued from the war.
The law predated the introduction of the debt ceiling by more than five decades, and, some argue, hasn't come into conflict with the latter legislation because the debt limit has always been raised in line with spending and interest obligations.
Speaking to the Harvard Gazette on May 15, Laurence Tribe, emeritus professor of constitutional law at Harvard Law School, who has advocated Biden's strategy, said the 14th amendment was "a guarantee that the U.S. will always be good for all its debts, period."
He added that even after the debt ceiling was introduced in 1917, the 14th amendment "hovered in the background, promising the world that the U.S. could always be counted on to pay its debts in full—as long as those debts had been authorized by law."
Tribe argued that such authorization could consist of laws providing funding for federal programs, and once those spending commitments had been made, "it doesn't cancel the obligations that happen to come due when the ceiling is reached." As such, the federal government must find means to come through on the promises it has made, whether that be spending or borrowing, he said.
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"If I owe you money and I fail to pay you back, that by itself does nothing to question the validity of the debt that I owe you," Saikrishna Prakash, professor of constitutional law at the University of Virginia, said*.* "It just means I've not fulfilled the obligation, which of course is not good... but it's not questioning the validity."
He added: "Every sensible person in public office understands that the debt is valid whether or not it's paid on time, so failing to pay it on time is not questioning its validity."
Prakash has previously written in the Wall Street Journal that Biden borrowing money without the consent of Congress—as would be the case if the debt limit wasn't raised, but the White House sidestepped a default—would be "dangerous and uncharted territory."
While some have noted this would likely face a legal challenge and that such bonds would be seen as risky by lenders, Prakash told Newsweek that he saw the precedent it would set as potentially being used by future administrations, including to possibly pose their own spending cuts by vetoing a rise in the debt ceiling.
"This power, once it's unleashed, if it's used consistently, could be used for all kinds of things and ways the Democrats wouldn't want it to be used," he said. "Whenever the executive branch makes a legal stretch, I think it's not good because then it gets cited by other presidents for other legal stretches—and that's sort of been the pattern for decades."
Congressional Approval
Jonathan Turley, an attorney and law professor at George Washington University, who has testified at the impeachment trials of both Bill Clinton and Donald Trump, wrote on Monday in a blog that Biden's strategy suggests "that a president does not need congressional approval to borrow and spend trillions of dollars, even though the Constitution explicitly grants both of those powers to Congress alone."
He added that it also assumed that "by demanding budget cuts as a condition of permitting further borrowing, the House is violating the 14th Amendment."
Newsweek approached the White House via email for comment on Tuesday.
Many, like Prakash, see Biden's claim not as a realistic possibility for resolving the debt ceiling debate, but rather as a negotiating tactic.
"It's a point of leverage," Alex Waddan, associate professor in politics at the University of Leicester, in the U.K., told Newsweek. He added that the demands from House Republicans were "pretty unacceptable to the Biden administration," so the reference to the 14th amendment "is a means for the administration to try and exercise some muscle and say: 'we have got options.' I don't think it's an option they'd like to use, but it is possible."
While Biden has submitted a budget to Congress for 2024 that would save $3 trillion over the next decade, the bill passed by the House would seek savings of $4.8 trillion in the same period, with cuts coming from policies such as student debt cancellation and energy tax credits—key planks in Biden's agenda.
Waddan said the constitutional view being espoused by the Biden administration was "not a made-up, completely fanciful legal argument," but rather one that lacked precedent. But until recent decades, he said, the debt ceiling had largely been raised without issue.
"If the negotiations don't come up with anything, that might be a ploy they would use to try and introduce some stability," he suggested. "Of course, there'd be legal challenges to that, but they'd take some time to be resolved."
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