Senate Democrats are urging President Biden to use the 14th Amendment to raise the debt ceiling, arguing he has the constitutional authority to take the unilateral step to prevent a GOP-driven default.
They say Biden should not agree to GOP demands for major concessions on spending cuts to raise the debt ceiling, and that he should extend the nation’s borrowing authority by taking a step no previous president has done.
“I personally feel that we should test that and I think that the language is very explicit in that amendment,” said Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) when asked whether Biden has the authority.
Senate Democrats say they have consulted with constitutional scholars about the option, and that Biden should test it if House Speaker Kevin McCarthy (R-Calif.) does not waver in his demands.
“The 14th Amendment is not anyone’s first choice. The first choice is that the Republicans raise the debt ceiling because the United States government never, ever, ever, ever defaults on its legal obligations. But if Kevin McCarthy is going to push the United States over a cliff, then it becomes the president’s responsibility to find an alternative path,” said Sen. Elizabeth Warren (D-Mass.).
Republicans in the House and Senate have warned against using the 14th Amendment, saying Biden does not have this power and warning of challenges in the courts.
Biden himself has raised the possibility, indicating he’d consider the move — but not without pause.
“I have been considering the 14th Amendment,” Biden told reporters Tuesday after a meeting with congressional leaders at the White House made minimal progress on the debt-limit stalemate.
Treasure Secretary Janet Yellen last week, however, acknowledged serious problems with the 14th Amendment as an answer to the debt crisis.
“There would clearly be litigation around that; it’s not a short-run solution,” she said at a news conference in Japan, adding it would be “legally questionable.”
The 14th Amendment, passed by the Senate in 1866 shortly after the end of the Civil War, states “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 language was adopted to ensure that the former Confederate states could not attempt to disavow the debts incurred by the Union during the war.
Durbin acknowledged that using the 14th Amendment would lead to a court challenge and was not an ideal option. But Democrats are also signaling they might rather roll the dice in court than agree to GOP spending cuts — or hope a deal can be reached with McCarthy.
Warren pointed to the writings of constitutional scholar and Harvard University professor emeritus Laurence Tribe, who argued in a May 7 New York Times op-ed that Biden has a duty to uphold the laws, passed by Congress, that have incurred more than $31 trillion in debt.
“Professor Tribe rightly points out that the 14th Amendment creates a plausible way to deal with the debt ceiling, even in the face of the Republican hostage taking,” she said.
Asked whether Biden should deploy the 14th Amendment as soon as next month, Warren said it “depends what the alternative is.”
“If the alternative is that the Republicans are going to hurtle us over a cliff in which the American economy crashes, we’re thrown into a recession and millions of people are put out of work and our good name around the world is destroyed, then not-great alternatives look like a better option than chaos,” she said.
“The language seems pretty straightforward, and it’s hard to reconcile the language in the 14th Amendment with a law passed by Congress that creates a debt ceiling,” she added.
Warren taught law at Harvard University before winning election to the Senate.
Biden on Tuesday offered caution when it comes to the 14th Amendment talk, saying “the problem is it would have to be litigated” and warning that “in the meantime, without an extension, it would still end up in the same place,” suggesting that a default still might result if a court stayed his action.
The growing possibility that Biden might attempt a constitutional end run around Congress is sparking alarm among Republicans.
Senate Republican Leader Mitch McConnell (Ky.) responded to Biden’s threat to use the 14th Amendment by declaring on the Senate floor that “unconstitutionally acting without Congress” is “not an option.”
Senate Republican Whip John Thune (S.D.), the second-ranking Senate GOP leader, said Biden would face a legal challenge that would likely find its way to the Supreme Court, which has a 6-3 conservative majority.
“That will be tested. I think it would have to be litigated in court,” he said. “It’s not a realistic solution to the current crisis, but my understanding is he’s talking about potentially raising that issue and getting some sort of a legal reading on it for the next time around.
But Democratic senators argue that Biden has clear constitutional authority to circumvent McCarthy now, and they fear the Speaker is under too much political pressure from House conservatives and former President Trump to agree to any debt-limit bill that could pass the Senate.
“MAGA wants a default. It’s everybody else’s responsibility to prevent one,” said Sen. Brian Schatz (D-Hawaii), referring to Trump’s allies in the House.
He predicted that McCarthy would be willing to let the nation default “unless we repeal all the things that we enacted last Congress, which is essentially the same as asking for a default.”
At a CNN town hall in New Hampshire on Wednesday, Trump called on Republicans in Congress to “do a default” if Biden doesn’t agree to “massive spending cuts.”
McCarthy distanced himself from those comments Thursday and insisted that Biden’s refusal to negotiate with him for more than three months shows the president is the one pushing for a default.
The brinksmanship has spurred Democrats to press Biden to weigh executive action.
Senate Budget Committee Chairman Sheldon Whitehouse (D-R.I.), a member of the Senate Judiciary Committee, said using the 14th Amendment to raise the debt limit “beats default.”
Whitehouse said Biden has authority under the Constitution to raise the debt limit without Congress because “his duties to faithfully execute the laws includes all the laws that the forcing of default would require the government and the president to break, which includes all the appropriations bills and so forth.”
Whitehouse and other Democrats believe that if Congress refuses to raise the debt limit, it would force the executive branch to violate the wide array of laws that require federal funding of priorities ranging from the annual appropriations bills, to the payment of Medicare and Social Security, to interest on the U.S. debt.
Sen. Richard Blumenthal (D-Conn.), another member of the Judiciary Committee, said “there’s a strong argument” that Biden “has authority” to use the 14th Amendment to avoid a default if he can’t strike a deal with McCarthy.
“But I think we should have an agreement to raise the debt ceiling without having to resort to that authority,” he said.
–Updated on May 15 at 5:42 a.m.