President Joe Biden told reporters on Tuesday that he is considering using a constitutional provision about the validity of US debts to bypass House Republicans amid a tense standoff over the nation’s borrowing limit.
“I’m considering the 14th Amendment,” the president said after a meeting on the debt ceiling with Congressional leaders failed to make any significant progress. “I’ll be very blunt with you, when we get through this, I’m thinking about taking a look at — months down the road — to see what the court would say about if it works or not.”
Experts who spoke to Fox News Digital doubted the viability of President Joe Biden invoking the 14th Amendment to the Constitution to raise the federal borrowing limit, each explaining that the likely reason for the legislation does not quite match the context of the situation.
The 14th Amendment reads, “The validity of the public debt of the United States, authorized by law, including debts incurred for the payment of pensions and gratuities for services in suppressing insurrection or rebellion, shall should not be questioned.”
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US President Joe Biden speaks to the press after meeting with US Speaker of the House Kevin McCarthy, House Minority Leader Hakeem Jeffries, Senate Majority Leader Chuck Schumer and Senate Minority Leader Mitch McConnell at the White House in Washington, DC, on May 9 , 2023 .
Top Biden officials distanced themselves from the idea. Treasury Secretary Janet Yellen told ABC News’ This Week that adopting the amendment would cause a “constitutional crisis.”
And their skepticism seems to be shared by members of the legal community. Thomas Lee, professor of Constitutional Law at Fordham University, told Fox News Digital, “I wouldn’t call it crazy, because you know, it’s plausible based on a reading of the text, but in context…I don’t just think it’s the best reading of it.”
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“As applied to what President Biden can do now, it’s a unilateral act by the president, without congressional authorization…I don’t know what that really is. He can’t borrow money to pay off the debt: Congress has the power ‘to borrow Money on the credit of the United States’ under Article I, Section 8. I’m no financial expert and so other than borrowing money, I’m not sure exactly what the President can do to ‘ensure the public debt of the United States will be asked,'” Lee said.
But he predicted that, if faced with a court challenge from House Speaker Kevin McCarthy, the Supreme Court could decline to play a role in the case altogether.
WASHINGTON, DC – MAY 09: US House Speaker Kevin McCarthy (R-CA) holds a media availability at the US Capitol on May 09, 2023, in Washington, DC. (Photo by Alex Wong/Getty Images)
“My gut reaction, based on Chief Justice Roberts, is the Supreme Court might just say it’s nonjusticiable, which is, that this is not a rights-bearing provision. So we’re just not going to decide the political question,” said Lee.
Ilan Wurman, an associate professor of law at Arizona State University, argued that the 14th Amendment was not meant to cover debts incurred in the future.
“The plain reading of Section Four is that it has absolutely nothing to do with the debt limit. Existing debts cannot be questioned; but raising the debt ceiling is for the purpose of creating new debts. Nothing in Section Four says that Congress must create new debt to pay off older debt. Failure to raise the debt ceiling does not call into question the validity of existing debts,” Wurman said.
WASHINGTON, DC – MAY 09: US Senate Minority Leader Mitch McConnell (R-KY), Speaker of the House Kevin McCarthy (R-CA), President Joe Biden, and Majority Leader of the Senator Chuck Schumer (D-NY) White House Office on May 09, 2023 in Washington, DC. (Photo by Anna Moneymaker/Getty Images)
“Congress has many other ways to pay off the existing debt. It could sell public lands, for example, or cut spending. But even if Congress somehow had no other options for servicing its existing debt, the defaulting on a debt is not the same thing as questioning its validity. A creditor may or may not have a remedy for such failure–usually there are no bankruptcy proceedings for sovereigns–but that is still not the same thing in voiding the debt. A right may still be a right even if there is no effective remedy, and a debt may still be valid even if a creditor cannot collect.”
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Carrie Severino, head of the Judicial Crisis Network, criticized Biden for even considering the move.
“It’s telling that the Biden administration is willing to consider far-fetched constitutional theories that even Janet Yellen won’t embrace instead of engaging in the real legislative work of dialogue and compromise,” Severino told Fox News Digital. .
WASHINGTON, DC – MAY 09: US Senate Minority Leader Mitch McConnell (R-Ky.) and Speaker of the House Kevin McCarthy (R-Calif.) leave after meeting with President Joe Biden at the White House
Yellen warned about the possible consequences of invoking the 14th Amendment during her televised interview with ABC over the weekend.
“There is no way to protect our financial system and our economy other than Congress doing its job and raising the debt ceiling and enabling us to pay our bills,” he said. “We shouldn’t get to the point where we have to consider whether the president can continue to issue debt. It would be a constitutional crisis.”
