What Is the 14th Amendment, and Can Biden Use It to Fix the Debt Ceiling?
Scholars differ on whether the Constitution lets the president pay debts, whatever Congress says
The debt-ceiling standoff has renewed debate over the Constitution’s 14th Amendment. Some lawyers argue it lets President Biden unilaterally pay the nation’s debts without heeding Republicans’ demands; others say that idea fundamentally misreads the Constitution. Here’s an overview of the so-called 14th-Amendment strategy and why it looms large in negotiations between the White House and House Republicans.
What does the 14th Amendment say?
Ratified in 1868, the 14th Amendment is best known for extending citizenship to former slaves and guaranteeing “equal protection of the laws.” But it also contains a more obscure, less-litigated section that requires the government to repay its debts. That clause, Section 4, states: “The validity of the public debt of the United States, authorized by law, …shall not be questioned.”
Section 4 was added to address debts incurred in fighting the Civil War. It punished the Confederacy’s creditors while protecting lenders that helped finance the Union war effort.
Some Democrats say the 14th Amendment lets Biden bypass the effort by Republican lawmakers to lay down conditions for paying off debts already incurred. They argue that because he as president has a duty to ensure repayment of the government’s debts, he is within his power to keep borrowing money to do so—even if Congress disapproves.
Is the strategy lawful?
The Supreme Court has never addressed the 14th-Amendment theory, which only in the last decade or so has gone from “fringe” to “mainstream,” according to the legal historian Garrett Epps, an early proponent of the strategy.
Treasury Secretary Janet Yellen said she doubted that the 14th Amendment was an effective solution to the current debt standoff. “What I would say, it’s legally questionable whether or not that’s a viable strategy,” Yellen said.
Some experts say invoking the 14th Amendment to exceed the debt ceiling would be downright unconstitutional. In the U.S. constitutional system, Congress holds the power of the purse and controls government spending. Allowing the executive branch to incur debt without the approval of Congress violates this separation of powers, these scholars maintain.
“It’s pretty central to our system of government that Congress has to be the one figuring these things out,” said Philip Wallach, a senior fellow who focuses on regulatory-policy issues at the American Enterprise Institute, a center-right think tank based in Washington, D.C. “The Biden administration even flirting with these ideas really suggests that the administration’s fidelity to the Constitution is questionable or opportunistic.”
Other scholars say Biden wouldn’t be overstepping his authority, but simply ensuring that Congress’s own spending commitments are honored.
“Yes, Congress has the power of the purse,” said Georgetown law professor Anna Gelpern. “But there are constitutional limits on the way in which Congress exercises its power, and exercising it to undo its own commitments is not permissible.”
What has Biden said about the 14th Amendment?
The president has voiced support for the 14th-Amendment strategy and concerns about its practicality.
“I’m looking at the 14th Amendment as to whether or not we have the authority—I think we have the authority,” Biden told reporters Sunday. “The question is, could it be done and invoked in time that it would not be appealed, and as a consequence past the date in question and still default on the debt. That is a question that I think is unresolved.”
If the president were to invoke the Amendment and exceed the ceiling, Republicans would surely sue. It is unlikely such legal challenges would get resolved before June 1, when Yellen has said the U.S. government could become unable to pay all its bills.
Putting aside who has the better legal arguments, the 14th-Amendment strategy comes with clear risks and downsides, said David Kamin, who served as deputy director of the White House National Economic Council earlier in the Biden administration.
“Even though I think there’s strong arguments around the 14th Amendment, it’s not one that provides a clean solution relative to Congress doing what it should and actually raising the debt limit,” said Kamin, now a professor at New York University’s law school.
What have past presidents done?
No president has ever used the 14th Amendment to address the debt ceiling, which wasn’t instituted by Congress until 1939 and for many decades rarely triggered a political battle. The 14th-Amendment strategy gained attention in 2011, when Barack Obama was president and House Republicans used debt-ceiling talks to force spending cuts. Former President Bill Clinton said at the time that he would invoke it “and force the courts to stop me.” Obama demurred.