When The Dust Settles, Biden Should Begin Litigating The 14th Amendment

[ Posted Tuesday, May 23rd, 2023 – 16:19 UTC ]

President Joe Biden could have avoided the political nightmare he is now caught in the middle of, if he had earlier worked with those in Congress who attempted to deal with the situation before it ever got to this point. But Biden, for some inexplicable reason, decided not to defuse the ticking time bomb and instead he counted on it not blowing up in his face. Assuming for the moment that somehow we'll all manage to safely get out of this situation in the next few weeks (which is still a rather large assumption, at this point), Biden should at least learn the lesson of his own inaction. When the dust settles on the current debt ceiling crisis (no matter how it works out), Biden should immediately move to avoid it ever happening again. Right after whatever deal is struck and passed through Congress, Biden should announce to the country that he has now determined that the debt ceiling itself is incompatible with the 14th Amendment and therefore unconstitutional and null and void. Doing so after the current crisis has been resolved would allow the issue to be litigated while there is no looming threat of default. The case could work its way through the courts all the way up to the Supreme Court with plenty of time to spare, and whichever way the courts ultimately ruled, it wouldn't cause a worldwide economic panic.

As I said, earlier Biden had two chances to eliminate the problem, for at least the rest of his first term in office. There was a push by some Democrats in Congress last year to eliminate the debt ceiling altogether. Virtually every other country on Earth does not have this legal fiction to contend with, since in other countries when spending is approved and signed into law, this also approves any borrowing which is necessary to fund such spending. Only in America is this on two tracks: the annual federal budget approves spending, but the debt limit restricts what can be borrowed. Both are federal laws, it is worth pointing out. Budgets are passed and signed into law just like debt ceiling hikes. So when the two come into contention (as they are about to), a president must choose which of two contradictory laws he should follow -- the one which dictates spending the money, or the one which dictates how much can be borrowed to provide the funding to do so.

So, earlier, some Democrats wanted to solve the problem on a permanent basis. They would have done so by making all federal budgets also approve any necessary borrowing to pay for what they were appropriating -- in essence tying the two issues together (as virtually every other country does). This would have been a simple and elegant solution to the problem, and removed the arcane century-old debt ceiling which was gumming up the works.

But Biden inexplicably poured cold water all over the idea. He actually said getting rid of the debt ceiling would be "irresponsible," although nobody bothered to follow up on this bizarre statement by asking him why guaranteeing that continuing showdowns with Congress over the full faith and credit of the U.S. government would continue to happen was somehow the "responsible" path to take. Or why permanently avoiding such hostage-taking crises would somehow be "irresponsible." Biden uttered this comment just before last year's midterms, it is worth noting.

After the midterms, when Republicans won back control of the House, another effort was launched in the lame duck session of Congress to raise the debt ceiling so high it wouldn't have to be addressed until after the 2024 election. Biden refused to support this effort too. It seemed he almost relished the prospect of doing battle with the Republican House over the debt ceiling, projecting a confidence that he would somehow emerge the political victor in such a fight.

That was then, this is now.

Biden has been ignoring one of his own political go-to lines in all of this. He is fond of telling crowds (as if it is a huge revelation, instead of being patently obvious for at least a decade): "This ain't your father's Republican Party any more." Republicans are not rational political players any more, they are instead closer to political nihilists. Granted, this is all true, but almost everyone already knows it before Biden makes what he thinks is a "big reveal."

Now Biden is being forced to consider taking radical action to avert a default on America's debts. If a deal can't be struck with Kevin McCarthy in time, then some other way of avoiding a default may become the only possible way out of the mess. There are more than one of these, including minting a trillion-dollar platinum coin and depositing it with the Federal Reserve, but the one getting most of the attention currently is to fall back on a clause from the 14th Amendment which says: "The validity of the public debt of the United States... shall not be questioned." The debt ceiling inherently does so. Thus, by the 14th Amendment, the debt ceiling itself is unconstitutional and should go the way of the dodo.

Up until very recently, Biden has not been a big fan of this option. But since he's now backed into a corner, he is giving it a lot more consideration than he used to. But since the hour is growing late, he also realizes what a mess it would cause if he suddenly came out and announced that as far as the White House was concerned, the debt ceiling was null and void. Republicans in the House would howl, and when they got done rending their garments in public, they would sue. But no court case -- no matter how speedy -- could be realistically resolved before the debt ceiling was actually breached. So worldwide investors wouldn't know if the debt the U.S. was issuing was even valid or legal -- which would cause the same sort of panic and hike in interest rates that an actual default would. This means that invoking the 14th Amendment right now wouldn't really solve the immediate problem at all.

Biden is stuck with either considering one of the other emergency options people are suggesting, or striking a deal with Kevin McCarthy. At this point, some sort of deal looks like the most plausible endgame (hopefully, at least).

What should happen immediately after such a deal is signed into law, however, is that Biden should just go right ahead and invoke the 14th Amendment anyway. Any deal Biden agrees to will almost certainly extend the debt ceiling beyond the 2024 election, so Biden can easily claim that he is doing the entire country a public service by forcing the issue -- not knowing whether it will benefit him (if he wins a second term) or anyone else who will be president after him. Doing so with a year and a half of smooth sailing would mean the court case would have plenty of time to make it through the judicial process and be fully litigated long before the next crisis hits. It'd merely be a public service, and it would be about as apolitical a way of litigating this question as can be imagined.

The 14th Amendment option is much like a very old fire extinguisher that is kept under the nation's sink. It's so old nobody knows -- if it ever had to be used -- whether it will successfully put out a growing fire or whether instead it will just go "Pffft!" and not work at all. The only way to find out is to test it. But wouldn't it be a good idea to test it before we're all in the midst of a crisis? Invoking the 14th Amendment with no such crisis on the horizon would allow everyone to know whether it was a viable solution or not, without risking the whole house burning down if it didn't work right.

If the courts somehow ruled against it and said the debt ceiling was still constitutionally valid, then nothing would change. With no deadline looming, it would just mean a return to the status quo ante, and we'd all have to go through this all over again the next time the debt limit was getting close to being breached.

If, however, the Supreme Court ruled for Biden and agreed that the 14th Amendment precluded any "questioning" of "the validity of the public debt," then we'd all be free from this nightmare forever. There would never be another opportunity for hostage-taking by radical Republicans. It would remove the tactic from their political toolbox for good.

It is worth finding out which way the courts would interpret the 14th Amendment, no matter which way they decided the issue. But it would only be responsible to put this to the test if an imminent default weren't hanging over the court case like the sword of Damocles. It would be a purely academic court case to the financial markets as long as it happened long before we approached the next possible default. So there'd be no reason for the markets to panic, no matter what the ultimate outcome.

President Biden missed his chance -- two of them, actually -- to defuse this situation and deny even the temptation for Kevin McCarthy to hold the full faith and credit of the United States as a hostage in a political game of "chicken." Biden failed to act in a timely manner, which set us all up for the current crisis. He should learn from his mistake and do whatever he can -- including litigating the 14th Amendment option -- immediately after we get through this crisis, in an effort to possibly avoid ever having to go through it all again.

After all, it'd be the responsible thing to do.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


8 Comments on “When The Dust Settles, Biden Should Begin Litigating The 14th Amendment”

  1. [1] 
    Kick wrote:


    Republicans in the House would howl, and when they got done rending their garments in public, they would sue.

    The SCOTUS has held time and time again that in order for a party to have standing to sue, they must prove they suffered/will be likely to suffer some form of direct/substantial injury if the particular wrongdoing is not redressed.

    So, I ask you ["you" meaning any person]: Who would have standing to sue the current President of the United States claiming he was directly harmed by raising of the debt ceiling? In forming your answer, keep in mind that the vast majority of these same clowns voted thrice in the affirmative to raise the debt ceiling under the former POTUS and/or didn't move a finger to sue when it was raised all those previous times.

    Discuss. :)

  2. [2] 
    Kick wrote:

    Y'all please don't make the mistake of underestimating Joe Biden. :)

  3. [3] 
    Elizabeth Miller wrote:

    I've long been guilty of making the opposite mistake. :(

  4. [4] 
    John M from Ct. wrote:

    I'm with Kick on this one, Chris. You wrote, should Biden declare he will continue to borrow money to fund Congress's appropriations, thus breaking the debt limit law on the basis that the 14th Amendment requires him to do so:

    "Republicans in the House would howl, and when they got done rending their garments in public, they would sue."

    Sue about what? Or more to Kick's point, sue on what grounds that the federal courts and the Supreme Court would agree to hear the case and so throw the nation's credit under the bus?

  5. [5] 
    Bleyd wrote:

    I also wonder whether it would be politically wise to sue to enforce the debt ceiling if it came to that. I mean, I know that conservatives rail against spending and would try to sell such a suit as trying to rein in spending, which would probably play well with their base. However, would it play as well if the direct consequence was a debt default and financial crisis that would hurt their constituents, both the wealthy corporate interests as well as the normal folks? It's one thing if the default happens by them passively doing nothing, but quite another if they're actively forcing it to happen. We all know that Republicans would do almost anything to hurt Biden's chances of reelection, but would that include jeopardizing their own reelection chances?

  6. [6] 
    C. R. Stucki wrote:

    If the president has the right to raise the nat'l debt ceiling, that amounts to declaring that there is actually no debt ceiling. It would amount to one further step down the long path of ceding congressional power to the executive branch.

  7. [7] 
    Bleyd wrote:

    CR Stucki [6]

    That's not exactly how it would work. There would be two conflicting laws, one blocking the execution of the other. It is the purview of the executive branch to enforce laws, and since it would not be possible to enforce both laws, to the best of my understanding, it would be the duty of the executive branch to decide which law to enforce. If congress disagreed with that decision, they could sue and the courts would adjudicate the dispute.

    Doing that would not be a power grab by any branch, but rather a display of the very checks and balances that were built into the constitution to keep any single branch from gaining too much power.

    In this particular conflict, there seems to be a more reasonable case to be made in support of not enforcing the debt ceiling due to the 14th amendment, as constitutional law (the 14th amendment would qualify) supersedes federal law (the debt ceiling would qualify). However, that would depend on how the courts interpret the clause "The validity of the public debt of the United States... shall not be questioned." One way or another though, one of the laws, either the debt ceiling or the budgetary appropriations, which were both passed by congress, would need to be ignored, as it would not be possible to carry them both out beyond a certain point.

  8. [8] 
    Kick wrote:

    C. R. Stucki

    If the president has the right to raise the nat'l debt ceiling, that amounts to declaring that there is actually no debt ceiling.

    No one said the POTUS would have the right to raise it. Raising it and it being nonexistent are two entirely different things... obviously.

    It would amount to one further step down the long path of ceding congressional power to the executive branch.

    I don't think you're looking at this in the proper frame, Stucki. "Congress" -- multiple of them -- collectively over time has already voted for the spending in question. Why should any POTUS be forced to choose what spending will or will not be honored because another Congress demands he cut spending because they won't raise the debt ceiling to pay the obligations of the United States? If Congress won't produce a budget with particulars regarding who should be paid and in what amounts -- and this Congress has not -- and also won't raise the debt ceiling in order to pay the debts already authorized by "Congress," then the current Congress is de facto leaving the President no choice but to choose.

    This ain't rocket science, Stucki. Republicans cannot govern because they cannot agree on an effing thing. :)

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