Can the 14th Amendment be used for the debt ceiling?

As time runs short on the nation’s ability to pay its bills and the threat of the first-ever default looms, President Joe Biden says invoking the 14th Amendment to address the debt ceiling has been raised as an idea.

“I have been considering the 14th Amendment,” said Mr. Biden on Tuesday. “And a man I have enormous respect for, Larry Tribe, who advised me for a long time, thinks that it would be legitimate. But the problem is it would have to be litigated.”

Mr. Biden made the remarks after meeting with congressional leaders Tuesday about the debt ceiling. Those talks yielded little progress with the so-called “X-date” — when the bills can no longer be paid — likely just weeks away. Another meeting between the president and congressional leaders Friday at the White House has now been postponed, but staff-level negotiations continue. 

How does the 14th Amendment apply to the debt ceiling?

The amendment is more famous for its first section, which contains the equal protection and due process provisions that have been the basis of court decisions on civil rights, abortion and rights of citizenship. 

It is Section 4 of the 14th Amendment that pertains to the national debt, stating that the “validity of the public debt of the United States, authorized by law… shall not be questioned.”

“The text says that the validity of the public debt shall not be questioned,” said Paul Schiff Berman, professor of law at George Washington University. He says that under a literal interpretation of the text, “if you don’t raise the debt limit, you are challenging the validity of the public debt, and so, arguably, Congress’s failure would be unconstitutional under the 14th Amendment.”

When was the 14th Amendment passed?

The 14th Amendment was passed and ratified just after the Civil War. According to Berman, it included the national debt because of concerns that confederate legislators could someday take over Congress and stop paying off the war debt that had been incurred to fight the Civil War on the Union side.

The idea, Berman said, is that public debt is “incurred through the normal legislative process, which is what we’re talking about here, because it’s all expenses that were appropriated by previous congresses.”

“You can’t undo that debt or fail to pay that debt,” he said.

14th Amendment, debt … and lawsuits

But there is ambiguity in the amendment’s text, and as the president noted – invoking the 14th Amendment over the debt limit would lead to litigation. The amendment doesn’t state who should enforce the debt provision or how.

If Mr. Biden were to invoke the 14th Amendment, claim Congress has acted unconstitutionally by not raising the debt limit and say the administration is unilaterally going to keep paying the debts, he would presumably be challenged in court. 

The judiciary would have to address questions of standing to bring the lawsuit, whether the 14th Amendment addresses the debt question and whether the executive branch is empowered to keep paying the debt, absent congressional action, and more.

“What it would mean as a practical matter is that the debt would continue being paid by the executive branch until and unless some court ordered the executive branch to halt,” said Berman.   

It might provide a short-term solution to head off the threat of default as soon as June 1, but the litigation itself would create economic uncertainty, and its longer-term outcome is not at all clear. Tribe himself noted this in his op-ed, writing “my solution might roil the bond markets and cause lenders to demand a premium for extending credit to the United States. But no path out of the dilemma is without risk.”

Treasury Secretary Janet Yellen noted it was “legally questionable” when asked about the 14th Amendment on Thursday while traveling in Japan.

“There is no good alternative that will save us from catastrophe. And so I don’t want to get into ranking which bad alternative is better than others. The only reasonable thing is to raise the debt ceiling and to avoid the dreadful consequences that will come if we have to make those choices,” Yellen said. 

Republican House Speaker Kevin McCarthy said he opposes the idea of using the 14th Amendment and sees the idea as  a sign of failure on the part of the president to reach a deal.