AAs the political crisis over the debt limit continues, Biden Administration officials are being asked whether they would introduce a controversial legal theory under the 14th Amendment that could allow the President to pass on Congress and raising the nation’s debt limit without Republican approval.
The theory, which previous administrations have rejected, invokes Section 4 of the 14th Amendment to argue that it would be unconstitutional for the US to default on payments even if the debt level is not raised, to -effectively challenging the legal debt limit. land But doing so for the first time in US history could have a huge impact on the economy and raise a number of legal challenges that could take months to resolve, leaving the country in the fiscal crisis in the meantime.
The 14th Amendment states that “the validity of the public debt, authorized by law…shall not be questioned.” Some legal scholars argue that this clause allows the Treasury Department to continue borrowing money beyond the current $31.4 trillion debt limit that requires Congressional approval to raise or to build – which hit the country on January 19. compelling argument — to solve the current debt ceiling crisis,” says Rebecca Zietlow, a professor at the University of Toledo College of Law whose research focuses on the 14th Amendment.
Treasury Secretary Janet Yellen said Sunday that by introducing the 14th Amendment to get around the debt ceiling and continue borrowing money to pay the nation’s bills “constitutional crisis,” undermining the idea that the legal theory will solve the problem at hand. “What will you do if Congress does not meet its responsibility? There are simply no good options, and the ones you listed are among the options that are not good,” Yellen told ABC News when asked if the Biden Administration was considering invoking the 14th Amendment . She has said the US could default as soon as June 1.
Even most legal experts who favor the 14th Amendment argument say that it may be an emergency, last-ditch option to stave off a fundamental threat. Joe Biden said as much on Friday, noting that he was not yet ready to introduce the 14th Amendment, although he left open the possibility of such a move in the future. “I haven’t gotten there yet,” the President told MSNBC in an interview. But as the U.S. moves closer to normal, pressure is mounting on the Biden Administration to make a decision it makes legal – and economic – sense to take the argument.
Mr Biden is due to meet with House Speaker Kevin McCarthy and other top congressional leaders at the White House on Tuesday to discuss fiscal policy, although it is unclear whether any compromise will be made to avoid a default. without using this unproven legal theory.
Other legal scholars contend that the Biden Administration can ignore the debt limit without making a constitutional argument, basing the move instead on separation of powers concerns. Neil Buchanan, professor of law at the University of Florida and author of the Debt Relief Accidents2011 book that argues that the debt ceiling forces the President to choose between illegal and unconstitutional options, saying that he would recommend that Biden waive the statutory limit on borrowing until Congress lifts or repeals it. “It may be seen as a power grab by Biden, but this is the most unconstitutional choice,” he said. Laurence Tribe, a Harvard law professor and prominent constitutional scholar, wrote in New York Times op-ed Sunday argued a similar position – that Biden should insist that Congress has no right to tell the President what spending laws he agreed to avoid, which he described as ” ignoring one law to uphold the other. “
It is not clear what the Treasury Department would do if Congress – or the President – does not lift the limit in time. But others have argued that the statutory lending limit is binding, so any attempt to waive it for any reason would attract an immediate legal challenge to the High Court. But court cases “move at a much slower pace than the political and economic response,” Buchanan says. “It could take weeks or months for this to work through the courts. “
This is not the first time that people have thought about using the Constitution as a way to get out of the debt ceiling fight. When Biden was Vice President, former President Barack Obama closed the door on a 14th Amendment argument when faced with a similar situation in 2011. “I talked to my lawyers, ” Obama said at the time. “They’re not sure that’s a winning argument.”
More required reading from TIME
