Can Biden use Article 14 to Circumvent Congress on the Debt Ceiling?

One thing is sure, if he tries, there will be a huge fight.

As the debt ceiling negotiations have broken down, there is a growing number of Democrat and Progressive politicians clamoring for President Biden to use the 14th Amendment to circumvent Congress and remove the debt ceiling. Politicians like AOC, Bernie Sanders, and John Fetterman want Biden to take action. Biden and his aides are hesitant to pull this trigger but have said that the option is NOT off the table.

The last time the idea of the 14th being used was floated was back in 2011, under Former President Obama. Obama’s legal advisors told him back then that it wouldn’t work, and he agreed. The current crop of politicians calling for this are so quick to point to the phrase “shall not be questioned,” but they all seem to skip right over the phrase “authorized by law.” As the National Review notes:

Section Four of the 14th Amendment, designed to ensure the repayment of Civil War debts even over Southern objections, barred the federal government from repudiating its existing debts. But it did not, explicitly or implicitly, change the allocation of power to issue new debt. At the time, new issuances of debt were approved one at a time by Congress. The so-called debt ceiling instituted during the World War I is not a limit but a congressional grant of power to the Treasury to issue a certain amount of new debt, with discretion over time and terms. But once that new debt is exhausted, there is simply no authority in the executive branch to borrow more.

Democrats are blaming the GOP for this mess, but they are the ones who have refused to negotiate seriously, leading to the breakdown of talks on Friday (May 19). First, they suggested minting a 1 Trillion Dollar coin and using that to pay the debt, but Treasury Secretary Yellen said there was no way the Fed would accept such a coin as a valid currency. Now they’ve turned to the 14th to try to find some previously unknown, hidden power for the President to just wave his hand and do away with the debt ceiling. As Leader McCarthy told the Washington Examiner:

"Really think about this: if you're the leader of the free world, if you're the only president, and you're going to go to a 14th Amendment to look at something like that, I would think you're kind of a failure of working with people across the sides of the aisle or working with your own party to get something done."

If President Biden does choose to go down this path, it will inevitably end up before the Supreme Court. It is also very likely that most global trading partners and markets would view the move as illegitimate and treat the USA as if we had defaulted regardless of Biden’s declaration. As Tiana Lowe Doescher writes:

In effect, the 14th Amendment option is merely a default with more handwringing and deflecting blame on the evil Republicans who only wanted to tack an extra $14 trillion onto the national debt instead of another $19 trillion. The blame will rest solely on the Democrats who decided the most minor of haircuts was not worth avoiding a stagflationary crisis that would put the Nixon-Burns fiasco to shame. Biden simply cannot survive reelection with double-digit inflation and unemployment, and that's why McCarthy is correct to call his bluff.

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Lorraine Yuriar is a wife, mother, and lifelong conservative, currently stuck in a very blue state.