With the debt ceiling on the horizon and rapidly approaching, an obscure constitutional debate has been rekindled: Can a president invoke the 14th Amendment to raise the debt ceiling?
This question was all the rage ten years ago, the last time we came this close to a default. I asked legal scholar and National Review contributor Ilya Shapiro if this remains the case, and he confirmed that the answer hasn’t changed — it is still decidedly no:
“The bottom line is that the 14th Amendment doesn’t authorize the taking of debt. The president can’t ignore the debt limit any more than he can increase taxes or cut spending unilaterally.”
Section 4 of the 14th Amendment was composed to ensure that the United States would not repudiate the debts it had incurred during the Civil War and reassure those who had invested in U.S. bonds that their investments would be secure. It reads: “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 key phrase here is “authorized by law.” If President Biden were to accrue more debt than Congress says he can, it would be unauthorized by law.
Invoking the 14th Amendment is clearly not the panacea the president wants it to be. Biden must work with the ever-underestimated House Speaker Kevin McCarthy to ensure that the U.S. can continue meeting its financial obligations. Perhaps the White House and Senate Democrats should consider House Republicans’ Limit, Save, Grow Act — a wildly optimistic proposition, yet the most prudential option.