President Biden is floating the 14th Amendment as leverage to put pressure on Republicans who won’t budge on debt ceiling talks, but a host of legal uncertainties is raising questions about whether it’s a viable option.
Biden confirmed shortly after meeting with congressional leaders Tuesday that he had been considering invoking the 14th Amendment to avoid the country defaulting on its debts. That was a step further than he took on Friday when he told MSNBC he was not there “yet” on whether he had been weighing it as an option.
But his willingness to publicly float the idea shows how the White House is exploring steps Biden could take unilaterally to avoid a default and undercut Republicans.
“The 14th Amendment is Biden telling McCarthy that he’s got a risky card he can play as well, so don’t dare back us into a corner,” said Jim Kessler, a co-founder of centrist think tank Third Way.
Biden and congressional leaders emerged from the Oval Office meeting saying there was little tangible progress, but the president offered the very first glimpses of what alternatives, if any, could be possible to break the stalemate.
Administration officials have privately floated the idea that the amendment could be used to allow the president to unilaterally continue to issue debt. The argument hinges on language in a clause saying the public debt “shall not be questioned.”
“There have been discussions about whether or not the 14th Amendment … can be invoked,” Biden confirmed to reporters but added, “I don’t think that solves our problem now. I think that only solves your problem once the court has ruled that it does apply for future endeavors.”
Biden’s comments were particularly notable because just a few days earlier, Treasury Secretary Janet Yellen warned invoking the 14th Amendment to avoid a default could trigger a “constitutional crisis.”
But his remarks also acknowledged the legal quagmire that could result.
Should Biden invoke the 14th amendment, he is liable to be sued either by Treasury bondholders or by GOP lawmakers who could argue he’s violating Article I powers over federal spending. Biden could face a host of other legal problems should he move forward with the option, but given its uncharted territory, it’s uncertain how the courts might respond.
Whether Biden has the legal standing to invoke the 14th Amendment is also up for debate, with constitutional scholars differing in opinions over whether the move would be held up in court.
“It’s something the president can do, and if he believes the debt limit is unconstitutional, it’s something he must do,” said David Super, a constitutional law expert at Georgetown University. “If he believes that the debt limit is contrary to Section Four of the 14th Amendment, then he’s obliged to not violate the Constitution.”
On being sued, Super said it’s not clear what the standing would be. He added that while the power of the purse lies with Congress, the debt limit deals with payments that Congress has already directed the president to make.
There is also the political risk of McCarthy describing the idea as a failure of leadership.
“Really think about this, if you’re the leader, if you’re the only president and you’re going to go to the 14th Amendment to look at something like that — I would think you’re kind of a failure of working with people across sides of the aisle, or working with your own party to get something done,” the Speaker said upon returning to the Capitol Tuesday.
Even some moderate Democrats, like Sen. Joe Manchin (D-W.Va.), have in recent days chastised the White House for what he viewed as a failure to engage in good faith on negotiations over the debt ceiling and government spending.
Biden himself cited the counsel of Harvard law professor Laurence Tribe, who wrote in a recent New York Times op-ed that it’s fair to ask whether Congress “can invoke an arbitrary dollar limit to force the president and his administration to do its bidding.”
Meanwhile, Jonathan Turley, a legal scholar at George Washington University, told The Hill the move would be a “constitutional Hail Mary throw.”
“The courts have never endorsed this novel argument. It would negate a critical component to the power of the purse given to Congress under Article I. Making this more troubling is the fact that some of the expenditures were made without congressional approval, including the tuition forgiveness plan,” he said, referring to Biden’s student loan forgiveness plan that is held up in court.
The White House continues to repeatedly stress that it’s ultimately up to Congress to avoid a default. But should a last-ditch effort to avoid a default by invoking the amendment go forward, Biden would risk a major lawsuit over an already fragile financial system just as he’s seeking reelection.
Republicans would likely sue Biden for invoking the 14th Amendment, and it would likely get appealed up to the Supreme Court, Super warned, which has a 6-3 conservative majority.
“The president invoking Section Four of the 14th Amendment would resolve the problem. Given how polarized the country is and how determined the Republicans are to use the debt limit for extortion, they surely would arrange for somebody to sue,” he said. “But then I think it’s a very close question whether anyone would be found to have standing to sue.”