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Several times this month, as the White House and House Republicans negotiated over a deal to lift the current debt ceiling, Biden has said he might at a later date declare the nation’s borrowing limit incompatible with the 14th Amendment of the Constitution, which says that the federal government’s debts must be paid. He repeated that idea Sunday, after he and House Speaker Kevin McCarthy (R-Calif.) reached an agreement. White House aides opted not to pursue unilateral action to resolve the current impasse — fearing that such a step could trigger a financial crisis by creating more uncertainty — and instead brokered the bipartisan deal.
But at least in theory, Biden could return to the question after Congress has suspended the borrowing limit. The idea, as expressed by the president, would be to test the novel legal interpretation that holds that the debt ceiling is incompatible with the Constitution at a time when the nation is not on the precipice of default. That would let the courts ponder it without the threat that an adverse ruling would prove calamitous.
Skeptics, though, say Biden’s remarks about the idea may primarily be aimed at assuaging liberals who are restless over the concessions he made to the GOP in the debt ceiling fight this time and make little sense as a legal strategy.
“My hope and intention is: When we resolve this problem, I’d find a rationale to take it to the courts to see whether or not the 14th Amendment is, in fact, something that would be able to stop it,” Biden said of the debt limit on May 21 while in Japan.
He also told reporters on May 9, “I’ll be very blunt with you: When we get by this, I’m thinking about taking a look at — months down the road — to see whether, what the court would say” about using the 14th Amendment to raise the debt limit.
On Sunday, he added a more specific time frame, saying he is exploring a legal case citing the 14th Amendment “a year or two from now.”
“But,” he added, “that’s another day.”
Despite the president’s musings, legal scholars say it may prove difficult, if not impossible, to invoke the 14th Amendment to void the debt limit outside of an existing standoff with Congress. That is because it is not clear what would precipitate a lawsuit forcing a ruling by the courts, and the judiciary would have little incentive to weigh in on a spat between the executive and legislative branches outside of an emergency. The same reason that such a court battle might appeal to the president — that it would occur outside the high stakes of a debt ceiling standoff — also undermines its feasibility as a solution, they say.
“I don’t see how it can be tested judicially,” said Laurence Tribe, a Harvard law professor whom Biden has frequently praised and who has argued that the debt limit is unconstitutional.
Tribe focused on the question of who would sue Congress to force the courts to take up the issue. Who would have standing to argue that the debt ceiling is unconstitutional? And why would the courts take up such a dispute, if the debt ceiling was not at risk of being breached?
“You have to establish that you were, or are about to be, injured, and that the injury can be rectified or avoided by what the court does,” Tribe said. “It does not seem like it works.”
Michael Kikukawa, a White House spokesman, said in a statement, “As the President said Sunday, Congress must act quickly to pass this bipartisan agreement to prevent a first-ever default on our country’s obligations, and other options are a question for another day.”
The 14th Amendment states that “the validity of the public debt, authorized by law … shall not be questioned,” which has led some legal experts to argue that it invalidates the debt ceiling’s cap on government borrowing. In the event that the president has to pick between enforcing the limit on federal borrowing and carrying out spending and tax laws passed by Congress, some scholars have argued that the 14th Amendment means violating the debt limit is the less odious option. Critics of the idea maintain that the 14th Amendment is about ensuring payments on debt that was already issued — not a pass for the president to unilaterally issue new debt.
Scholars on both sides of the debate appear broadly skeptical that the courts would intervene without an ongoing crisis.
Cornell Law School professor Michael C. Dorf, whose research into constitutional objections to the debt ceiling has been widely cited, emphasized that the judiciary avoids constitutional disputes between the other two branches of the federal government if they are resolved via legislation. In this case, Congress and the White House already would have agreed to raise the debt ceiling.
“Courts have — and the executive branch tries to observe — a principle of constitutional avoidance,” Dorf said. “If you can resolve an issue by statute, you don’t have to resolve the constitutional question.”
What it would entail to “invoke the 14th Amendment” also has been unclear. One possibility is for either the White House legal counsel’s office or the Justice Department’s Office of Legal Counsel to issue an opinion finding the debt ceiling unconstitutional. A more unusual step would be for the president to issue an executive order directing his attorneys to come to that conclusion. But even those measures would not mean that the debt ceiling is suddenly illegal, unless the courts issued a decision.
“It has as much force as my law review articles,” Dorf said. “Until it’s actually implemented, it has no real effect. And until it’s actually challenged in courts, it does not resolve the issue definitively.”
Stanford law professor Michael McConnell, who has called the idea of invoking the 14th Amendment to circumvent the debt limit “dangerous nonsense,” was even more blunt: “I think this is fantasyland.” McConnell added of Biden, “I assume he’s just posturing for his partisans and trying to look as though he’s not backing down.”
Throughout the negotiations, Biden has taken criticism from some liberal Democrats who think his refusal to pursue the 14th Amendment led the White House to make unnecessary concessions to House Republicans. The president also has resisted calls to back legislation that would have Congress abolish the debt ceiling — an action endorsed by Treasury Secretary Janet L. Yellen.
Many congressional Democrats have called for eliminating the debt ceiling, arguing that it serves no useful function beyond giving the GOP an opportunity to extract concessions from Democratic administrations. Biden rejected that approach as recently as Sunday. Asked whether he supports eliminating the spending limit, the president said, “No, I think it would cause more controversy getting rid of the debt limit.”
A White House spokesman declined to elaborate on the president’s comments. But Biden appeared to be drawing a distinction between Congress’s abolishing the debt limit statute — a step he opposes — and invoking the 14th Amendment, which would leave it on the books but effectively void it if the courts sided with him.
Conservatives have strongly opposed repealing the debt limit, arguing it provides an important opportunity for Congress to evaluate its spending priorities. Mick Mulvaney, who served as the director of the Office of Management and Budget during the Trump administration, pointed to the 2011 debt ceiling deal that set spending limits and to spending increases in 2017 and 2019 as part of negotiations that also lifted the debt limit.
“I didn’t like those particular outcomes, but that was the result of the negotiations,” he said. “I think what the debt ceiling does is force us to talk about why we need to borrow more money.”
Although Biden’s advisers studied the matter after Republicans took over the House and made clear they would seek concessions for agreeing to raise the debt ceiling, they were wary of invoking the 14th Amendment in the current standoff for fear of what it might provoke in financial markets.
That action probably would have been challenged in court by Republicans, who would claim an overreach of executive authority. Because prospects for repayment would be unclear under a legal theory that the courts could later invalidate, investors could demand much higher interest rates on government debt issues. Federal borrowing costs would have spiked, and so would the costs of loans elsewhere in the economy, leading to the same broader panic in financial markets that the move would be trying to prevent.
As part of negotiations, Biden aides resisted the most dramatic demands made by House Republicans, but they still agreed to pare back roughly $20 billion of the $80 billion of new funding approved last year for the Internal Revenue Service, while also imposing new work requirements for federal welfare aid. Liberals think Biden is repeating what they view as a mistake the Obama administration made in 2011: rewarding the GOP’s threats with concessions.
“Please, let’s try a different approach in 2025, whether that’s unilateral from the start or Democrats starting from a position of strength by advancing their own proposal,” said Lindsay Owens, the executive director of the Groundwork Collaborative, a left-leaning think tank. “We got through this by the skin of our teeth.”
Already, some legal efforts to overturn the debt limit are stalling even before the deal has been approved.
Three legal experts had prepared a lawsuit against the administration to have the debt ceiling declared unconstitutional. But after the deal was announced, they put their lawsuit on pause and are weighing how to proceed if the agreement passes in Congress. One of the scholars, Cornell University law professor Bob Hockett, emphasized that the courts typically do not take a case unless the plaintiffs can demonstrate that damage has occurred or is imminent.
The National Association of Government Employees — a union that represents many federal workers potentially affected by a debt ceiling breach — filed a lawsuit in federal court last month challenging the limit as unconstitutional. But U.S. District Judge Richard G. Stearns in Massachusetts on Monday ordered the case postponed, citing the debt ceiling agreement apparently reached between the executive and legislative branches.
Meryl Kornfield contributed to this report.
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