Democrats urge Biden to embrace untested legal theory, invoke 14th Amendment to unilaterally raise debt limit

 May 18, 2023

Rather than engage in negotiations with Republicans, some Democrats are urging President Joe Biden to invoke a novel interpretation of a constitutional amendment to unilaterally raise the nation's debt limit, The Hill reported.

That call for the president to bypass the legislature comes as congressional Republicans have demanded spending cuts and other reforms in exchange for raising the debt limit ahead of a June 1 deadline, at which point the government will allegedly be unable to pay for all of its incurred debts and obligations.

A novel legal theory on increasing the debt limit

Section 4 of the 14th Amendment of the U.S. Constitution states: "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."

There are some who have advocated a theory, such as Harvard Law School professor Laurence Tribe, that the 14th Amendment, by virtue of its inclusion in the Constitution, supersedes any and all statutory laws, including the 1917 law that established a national debt limit, and therefore authorizes the president to take any and all necessary actions, including simply ignoring or unilaterally raising the debt limit, to pay all lawful debts and obligations and avoid default.

Such a move would be unprecedented in the nation's history and would undoubtedly face immediate legal challenges if attempted, but those concerns haven't stopped Democrats from urging President Biden to act unilaterally and put the novel theory to the test instead of negotiating and compromising with Republicans.

Democrats urge Biden to invoke 14th Amendment

A group of 11 Democratic senators led by Sens. Tina Smith (D-MN) and Bernie Sanders (I-VT) sent a letter on Thursday to President Biden that outlined the current situation with regard to the debt limit and lambasted Republicans for their proposed conditions for increasing that debt limit prior to the June 1 deadline.

"Republicans’ unwillingness to consider one penny in new revenue from the wealthy and large corporations, along with their diminishment of the disastrous consequences of default, have made it seemingly impossible to enact a bipartisan budget deal at this time," the senators wrote.

"We write to urgently request that you prepare to exercise your authority under the 14th Amendment of the Constitution, which clearly states: 'the validity of the public debt of the United States ... shall not be questioned,'" they added. "Using this authority would allow the United States to continue to pay its bills on-time, without delay, preventing a global economic catastrophe."

Yellen says invoking 14th Amendment would cause a "constitutional crisis"

However, not everybody is on board with the 14th Amendment debt limit theory, including Treasury Sec. Janet Yellen, who explained why it was likely a bad idea during an appearance nearly two weeks ago on ABC News' "This Week" with host George Stephanopolous.

"There is no way to protect our financial system in our economy other than Congress doing its job and raising the debt ceiling and enabling us to pay our bills," Yellen said. "And we should not get to the point where we need to consider whether the president can go on issuing debt. This would be a constitutional crisis."

"All I want to say is that it's Congress' job to do this," she continued. "If they fail to do it, we will have an economic and financial catastrophe that will be of our own making, and there is no action that President Biden and the U.S. Treasury can take to prevent that catastrophe," including any novel "emergency options" that have been suggested.

Biden worried about 14th Amendment litigation

President Biden himself, while speaking with reporters last week, suggested he was considering the theoretical 14th Amendment action endorsed by Harvard Law professor Tribe and others but said that "the problem is it would have to be litigated. And in the meantime, without an extension, it would still end up in the same place."

"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 whether or not the -- it does work," the president continued.

Pressed on the matter, Biden admitted, "But there have been discussions about whether or not the 14th Amendment is -- can be invoked," yet added just a moment later, "I -- I don’t -- I don’t think that solves our problem now. I think that only solves your problem if -- once the court has ruled that it does apply for future ene- -- endeavors."

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