Invoking the 14th Amendment to Bypass the Debt Ceiling Is the Worst Solution to This Crisis

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AP Photo/Patrick Semansky

As President Joe Biden prepares for his meeting with Congressional leaders tomorrow to address the debt ceiling crisis – a crisis manufactured entirely by the Democratic Party, because even considering cuts to federal spending is somehow just impossible for them to consider – there is speculation inside and outside the White House that the Oval Office could use a little-known provision in the Constitution to bypass Congress entirely.

Biden is set to meet with House Speaker Kevin McCarthy on Tuesday, along with Mitch McConnell, Chuck Schumer, and Hakeem Jeffries, to discuss the debt ceiling and negotiate on how to raise it. The question among all politicians involved in this meeting is not over whether or not the debt ceiling gets raised, just whether or not that raise should be tied to cuts. McCarthy’s Republican-controlled House says it should be tied to major spending cuts, and McConnell appears to be standing with McCarthy on that front.

The White House has also signaled that, despite previous statements, a negotiation over cuts could take place. That position is wildly different than the absolute refusal to negotiate on the subject and insisting that Biden would only accept a clean debt ceiling raise.

But recently, a new talking point has emerged among Democrats, reporters, and the folks working in the Biden administration: Invoke the 14th Amendment to bypass Congress entirely on the debt ceiling.

It’s a risky strategy and one that Biden has dodged when questioned about it, as my colleague Bonchie pointed out.

The 14th Amendment strategy, as theorized by “legal experts” (a term that has lost all meaning in recent years), is as simple as declaring that the debt ceiling is unconstitutional because it is incompatible with the public debt section of the 14th Amendment.

Section 4. 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. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

As the Washington Post points out, the theory is risky, and the White House isn’t even convinced it’s a good idea.

Since the debt ceiling fights that began during the Obama administration, some legal experts have argued that the White House can ignore Congress and simply declare the borrowing limit to be incompatible with the 14th Amendment, which says “the validity of the public debt, authorized by law … shall not be questioned.” Under this theory, the Treasury Department could keep borrowing money past the limit, issuing federal debt to keep government operations funded. The administration would argue that Congress had approved two irreconcilable laws — the debt ceiling, and then later, measures that require spending in excess of the limit.

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But administration officials think these kinds of moves could backfire dangerously.

Any option to act without Congress would probably be subject to immediate legal challenge by Republicans as an overreach of executive authority. No matter what the merits of the debate are, Biden officials fear that investors would demand much higher interest rates to buy government debt that the courts could throw out, since prospects for repayment would be unclear. That could lead federal borrowing costs to spike, as well as drive up rates for other loans, and it could still lead to the same broader panic in financial markets that it is intended to avoid, administration officials fear.

Speaking with ABC News Sunday morning host George Stephanopoulos, Treasury Secretary Janet Yellen flat-out called it a “constitutional crisis” if the White House went that route.

“Our priority is to make sure that Congress does its job,” she said. “There is no way to protect our financial system in our economy other than Congress doing its job and raising the debt ceiling and enabling us to pay our bills. And we should not get to the point where we need to consider whether the president can go on issuing debt. This would be a constitutional crisis.”

Stephanopoulos followed up: “Is that a hard and fast position that the president will under no circumstances invoke the 14th Amendment?”

“All I want to say is that it’s Congress’ job to do this. If they fail to do it, we will have an economic and financial catastrophe that will be of our own making, and there is no action that President Biden and the U.S. Treasury can take to prevent that catastrophe,” Yellen replied, later saying, “I don’t want to consider emergency options.”

The problem for the White House is that the Republican Party has already passed a bill to raise the debt ceiling. It is the White House and the Democratic Party who have refused to negotiate so far. That they would consider constitutionally dubious ploys in order to get their way is a sign that they are not serious about any substantive reforms that bring the country away from constant crisis and political brinksmanship.

The lengths that they are going to here have no real fiscal or economic value. This is purely a political calculation to deprive the Republican Party of any semblance of a win. They are considering invoking the 14th Amendment to call the debt ceiling unconstitutional solely so that Kevin McCarthy and the GOP don’t walk away with anything they want. In the process, what they would be doing is violating the power of the purse that the House of Representatives has when it comes to government spending.

In other words, their 14th Amendment strategy is not only dubious, but it will also infringe on the powers of Congress in a way that’s far more unconstitutional than the debt ceiling could ever be.

And that is a pretty big problem for the Democrats, who are spending all of their political energy calling the Republicans the “extreme” party. Rather than negotiate, they will themselves take an absurd, unconstitutional position and expose themselves as just as bad — if not worse.

1 COMMENT

  1. The Demonrats will attempt to use any lie to justify stealing from taxpayers as the thieves and crooks they are…..and it’s the whole party as well as the RINOs.

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