The 14th Amendment to the US Constitution is one of the most consequential amendments. In addition to granting citizenship to anyone born in the United States (including the children of so-called “illegal immigrants”), it also says that no state may take any actions that deprive their citizens of the equal protection of the law. It was the opening gun in an effort to make ex-slaves full citizens and give them political rights.
Because of the looming danger that the existence of a legislated ceiling on the National Debt will force the United States to not be able to meet its spending obligations beginning around June 1, another section of the 14th Amendment has been highlighted as a possible “way out” for the Biden Administration should the Republicans in Congress persist in their demands for a tit for tat --- spending cuts for a debt ceiling increase
[As I have mentioned in previous commentaries, the Debt Ceiling increases have been routine (including three under the Trump Administration). Individual Senators and Representatives often vote against increases as “protests” against “too much spending” but except for 2011 when we came close to bumping up against the limit, there has never been any doubt that large majorities would support such increases. Things are definitely different today.]
Section 4 of the 14th Amendment 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.” Some people believe that the words “shall not be questioned” in effect mean that the very existence of a legislated debt ceiling for the United States government is unconstitutional. By this argument, President Biden could just say to the Republicans – “If you don’t raise the debt ceiling, I’ll just borrow the money anyway!”
The issue of the relevance of that section of the 14th Amendment as a solution to what I call the Republican hostage-taking re the debt ceiling has recently moved front and center on the opinion page of the NY Times. First up was Professor Laurence Tribe of Harvard Law School who wrote “Why I Changed My Mind on the Debt Limit” on May 7. [available here] Eight days later, Professor Michael McConnell of Stanford Law School published “The Case for Violating the Debt Limit Is Dangerous Nonsense” [available here]
On May 9, a number of government workers filed a lawsuit attempting to put Professor Tribe’s recommendation into action. The lawsuit was specifically against Secretary of Treasury Yellen and it argued that even if the United States government had hit the debt ceiling, forbidding the Treasury from borrowing any more money, because of the prohibition in Section 4 of the “questioning” of the public debt. Yellen could not refuse to pay them (which is what the government would have to do should it default).
[On this issue, see Sarah Ewall-Wice, “Lawsuit filed against Treasury Secretary Janet Yellen challenging debt limit law as congressional standoff threatens default.” @CBS news, May 9, 2023. Available here.]
The Tribe article and his in-person appearance on television produced a slightly positive response from President Biden. --- He said he was going to consider the 14th Amendment approach while still hoping to reach a compromise with House Republicans.
I will try to summarize the Tribe and McConnell arguments as accurately as possible.
Professor Tribe begins with the language of that Section of the 14th Amendment. But what does that language actually mean? To this layman it means that the public debt of the United States cannot be repudiated. The history of the Amendment suggests that the Republicans who dominated the post-Civil War Congress were worried that if Democrats took control sometime in the future, they would vote to repudiate the promise to Civil War veterans and widows.
That history is not relevant to today’s question which Professor Tribe immediately asks: “[Can] Congress — after passing the spending bills that created these debts in the first place — …invoke an arbitrary dollar limit to force the president and his administration to do its bidding.” Tribe answers in the negative but his argument doesn’t end there. He acknowledges that absent an increase in the debt ceiling (or its suspension or abolition) President Biden is faced with three choices – ALL OF WHICH – violate the Constitution. First, he could blow through the debt ceiling, breaking the debt ceiling law – in effect declaring it unconstitutional. Presidents cannot do that. Only Courts can do that. Second, he could unilaterally raise taxes to keep from blowing through the debt ceiling. He can’t do that either. Only Congress can do that. He could (the third “bad” choice) refuse to spend money Congress has already appropriated. He can’t do that --- doing that would violate his obligation under the Constitution to “take care that the laws be faithfully executed” (Article II, Section 3).
It is this last potential violation that leads Professor Tribe to this extraordinary conclusion:
“Mr. Biden must tell Congress in no uncertain terms — and as soon as possible, before it’s too late to avert a financial crisis — that the United States will pay all its bills as they come due, even if the Treasury Department must borrow more than Congress has said it can.
The president should remind Congress and the nation, “I’m bound by my oath to preserve and protect the Constitution to prevent the country from defaulting on its debts for the first time in our entire history.” Above all, the president should say with clarity, “My duty faithfully to execute the laws extends to all the spending laws Congress has enacted, laws that bind whoever sits in this office — laws that Congress enacted without worrying about the statute capping the amount we can borrow.”
By taking that position, the president would not be usurping Congress’s lawmaking power or its power of the purse. Nor would he be usurping the Supreme Court’s power to “say what the law is,” ... Mr. Biden would simply be doing his duty to “take care that the laws be faithfully executed” even if doing so leaves one law — the borrowing limit first enacted in 1917 — temporarily on the cutting room floor.”
Professor Tribe then punctuates this statement by reminding the readers that in the middle of the Civil War, President Lincoln suspended the Writ of Habeus Corpus because fighting and winning the Civil War had precedence.
Meanwhile, the lawsuit by the government workers is asking a District Court Judge to order Treasury Secretary Yellen to do exactly what Tribe is recommending to President Biden. By law theses workers are employees with a pay grade and benefits. The debt ceiling might force Secretary Yellen to “stiff” them. (The foolish argument by some that the Treasury Department can “prioritize” which bills to pay would also violate the admonition from Article II, Section 3. The Constitution does NOT say that the President (through his cabinet) can decide WHICH laws to execute.)
[This last point is worth exploring a bit more. During the administration of Richard Nixon, he attempted to refuse to spend money appropriated by Congress. This was called “impounding” the funds. He was taken to Court and later Congress reasserted their power of the purse with the Budget Control and Impoundment Act of 1974 which made clear that Presidents did NOT have to power to simply refuse to spend money appropriated by Congress.]
So what does Professor McConnell say in rebuttal? He has one oblique reference to the existence of Professor Tribe’s argument: I will put it and its context here:
“The debt limit is nothing more than an authorization from Congress to borrow a certain amount, up to a certain limit. The debt ceiling is not a restriction on what would otherwise be the president’s ability to borrow; it is an authorization for the executive branch to borrow up to that ceiling. Above that, the president may not go.
Nonetheless, Mr. Biden’s advisers reportedly are contemplating violating the congressional debt limit based on a far-fetched interpretation of Section 4 of the 14th Amendment propounded by some academics. Previous administrations have flirted with this idea, but all have rejected it. Mr. Biden should do the same. It would twist the words of the 14th Amendment, ignore its history and send the markets into turmoil.”
There is not a word of acknowledgement of Tribe’s argument let alone a refutation. Instead, we get a full reference to the role of Congress as the tax writing and spending branch of government as well as the rationale (which I mentioned above) for section 4 of the 14th Amendment. Reading McConnell’s essay does not let the reader know a word of Tribe’s argument despite the fact that it had been published in the NY Times over a week before McConnell’s. Instead, McConnell just states that the 14th Amendment “does not make it unconstitutional for the United States to run out of money.” This is a good example of gaslighting. Article II, section 3 makes it unconstitutional for the President to fail to spend money that Congress has already appropriated. That’s Tribe’s point and McConnell does not even acknowledge it.
I sure hope President Biden follows Professor Tribe’s advice.
ADDENDUM
I am unbelievably bothered by the idea that as of the delivery of these comments (Friday, May 19) President Biden seems to be willing to reward the Republicans for taking the economy hostage. Despite having voted three times to raise the debt ceiling during Trump’s presidency, they now suddenly are concerned about spending and deficits. NOTE – not the 1.2 trillion dollars in deficits created by the Trump tax cut but a few billion dollars here and there they might save by, for example, cutting back on some spending. So now, as in 2011, the Republicans are refusing to vote for a clean debt ceiling bill unless Biden and the Democrats give them something to crow about. At first President Biden said he would not negotiate over the debt ceiling and now it appears that he is. There are hints that he might even agree to some increased work requirements for recipients of food stamps (SNAP) while certainly agreeing to some spending cuts. Perhaps even worse is that the Republican “hostage demand” results in a one-year increase in the debt ceiling which means next year at this time, the same hostage taking could occur again. If President Biden is going to agree to anything, the Republicans must permit a TWO YEAR increase in the debt ceiling.
I sure hope that if a deal is struck, Biden is able to say that the amount of “compromise” he made with the Republicans is trivial. I personally wish he’d stayed strong and refused to negotiate with the hostage takers. Unfortunately, too many Democrats still believe that playing by the rules is important. The Republicans have shown time and time again that rules mean nothing to them. On this issue, I recommend a very scary article entitled
“America’s Cold Civil War” available here. It details the efforts to restrict the right to vote.
Here is some of the article:
“In the US, the right-wing voter suppression efforts reached a level not seen since the era of segregation, when white supremacists in the South had passed laws to deny Black Americans the right to vote and threatened everyone who dared to resist with violence.
The nation is now divided between people who want a multiracial democracy in which every American is allowed and encouraged to vote and those who yearn for an anti-democratic system in which an extremist white minority has unchecked control over everyone else. The latter group is represented by the Republican Party, which is brazenly waging a cold civil war by pushing for unprecedented voter suppression measures targeting minority and marginalized communities.
In response to the Democratic Party’s victory in the 2020 presidential and congressional elections, Republican-controlled state legislatures have proposed 253 bills in 43 states that aim to prevent millions of Americans, and especially Americans of color, from voting in federal and state elections.”
There is a joke that Democrats too often bring a knife to a gun fight. The negotiations with the Republicans over the debt ceiling is another example of this. I would add that the continued “respect” shown the Supreme Court by the President is another. At this stage of the negotiations it is unclear what the final deal will look like or whether the right-wing Republicans will blow it up anyway, but I continue to urge President Biden to stick to his (original) guns and use the 14th Amendment to end the possibility of hostage taking once and for all.
Michael Meeropol is professor emeritus of Economics at Western New England University. He is the author with Howard and Paul Sherman of the recently published second edition of Principles of Macroeconomics: Activist vs. Austerity Policies
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