A clause in the 14th Amendment is being cautiously considered as a possible emergency fix as the U.S. economy hurtles toward the looming threat of default.
The U.S. passed its borrowing limit earlier this year, and the Treasury Department has now said it could run out of ways to stave off a default by as soon as June 1 — and lawmakers and the White House are battling over whether and how to lift the $31.4 trillion debt ceiling and skirt default.
Republicans want to hike the debt limit and implement spending cuts, while the White House has pressed for a “clean” increase — bringing progress to an impasse.
Here’s what to know about the 14th Amendment and the debt ceiling:
What is the text of the 14th Amendment?
Ratified in 1868, the 14th Amendment to the U.S. Constitution is best known for extending the liberties enshrined in the Bill of Rights to former slaves — but it also includes a section mentioning the debt:
“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,” the amendment’s Section Four reads. “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.”
The amendment likely referenced debt due to concerns around the government’s obligations after the Civil War but has been interpreted by some to imply a broader meaning — though it’s not been heavily addressed by the courts.
What does that have to do with the debt ceiling?
Rep. Jamie Raskin (D-Md.) speaks at a House Oversight and Reform Committee organizational meeting for the 118th session of Congress on Tuesday, January 31, 2023. (Annabelle Gordon)
Some legal scholars believe the 14th Amendment’s reference to the national debt could be interpreted to mean it’s unconstitutional for the nation not to pay its debts — which would allow Biden to direct the Treasury to continue issuing debts to pay the U.S.’s bills without an increase or suspension of the ceiling.
Scholars have also argued that means the debt ceiling itself is unconstitutional.
“Under Section Four, it is unconstitutional for Congress to default on debt that the United States has already incurred, and arguably unconstitutional for Congress to impose any ceiling on U.S. debt,” University of Toledo law professor Rebecca Zietlow writes in Jurist.
But others worry the interpretation “raises thorny questions” about what exactly the text prohibits and whether it could “open the door for dangerous presidential overreach, if Section 4 empowers the president single-handedly to declare laws he dislikes unconstitutional,” Harvard Law School professor emeritus Laurence Tribe writes in the New York Times.
Tribe, though, has said he now thinks Biden “must tell Congress in no uncertain terms … that the United States will pay all its bills as they come due, even if the Treasury Department must borrow more than Congress has said it can,” thereby “ignoring one law in order to uphold every other.”
Rep. Jamie Raskin (D-Md.), who was a constitutional law professor before he was elected to Congress, said on MSNBC that he thinks Congress has put Biden “in a constitutionally untenable position” and that the president does have the authority to invoke the amendment.
What is the administration saying about the move?
Treasury Department Secretary Janet Yellen speaks on April 20, 2023, in Washington. Yellen said Sunday that there are “no good options” for the United States to avoid an economic “calamity” if Congress fails to raise the nation’s borrowing limit of $31.381 trillion in the coming weeks. (AP Photo/Manuel Balce Ceneta, File)
President Biden seems not to have ruled the move out, but he and others in the administration have indicated that it would be a last-ditch effort and that they’re approaching the possibility with caution. Biden told MSNBC last week that he had “not gotten there yet.”
Treasury Secretary Janet Yellen warned over the weekend that using the 14th Amendment would trigger a “constitutional crisis” and stressed that Congress should take action before such a move.
“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,” she said on ABC.
At a press briefing last week, White House press secretary Karine Jean-Pierre said the administration won’t “entertain scenarios” when asked if the president was considering the 14th Amendment option.
When would it need to be invoked?
President Joe Biden talks with House Speaker Kevin McCarthy (R-Calif.) on the House steps at the Capitol in Washington, Friday, March 17, 2023. Facing the risk of a government default as soon as June 1, President Joe Biden has invited the top four congressional leaders to a White House meeting for talks on Tuesday, May 9. (AP Photo/Alex Brandon, File)
Yellen has told congressional leaders they have until a June 1 deadline to take action to avoid what many have warned would be significant economic consequences if a default occurs.
Biden is meeting Tuesday with Speaker Kevin McCarthy (R-Calif.) and other congressional leaders to work toward a deal ahead of the deadline, a high-stakes talk after months of impasse between the two parties.
Could it be challenged?
President Joe Biden speaks during a meeting with his “Investing in America Cabinet,” in the Roosevelt Room of the White House, Friday, May 5, 2023, in Washington. (AP Photo/Evan Vucci, File)
A Biden move to invoke the 14th Amendment would likely spark a legal challenge, Reuters reports.
Though it’s not certain who would have the standing to bring forward a case, The Washington Post reports Republicans would likely argue the move is an overreach of the president’s authority.
Other scholars have suggested that Biden using the 14th Amendment could violate another part of the Constitution — Article 1, Section 8 — which gives Congress the power “to borrow Money on the credit of the United States.”