Why the 14th Amendment is coming up in the debt ceiling fight

As the U.S. looks to avoid a catastrophic default, some Democrats have floated an untested legal strategy designed to allow President Biden to circumvent Congress and unilaterally address the nation's debt ceiling.

The big picture: Biden has signaled some openness to invoking a strategy involving the 14th Amendment, while acknowledging there may not be enough time to weather potential legal challenges as a June 1 deadline looms.

• Mostly progressive House and Senate lawmakers have urged Biden to use the Civil War-era amendment to bypass the impasse with Republicans on debt ceiling talks so the country can pay its bills. The president has been negotiating with House Republicans behind closed doors.
• White House Press Secretary Karine Jean-Pierre said Tuesday that invoking the 14th Amendment is "not going to deal with the problem that we're currently having at this moment," signaling that it's an unlikely path forward in negotiations.
• "What we need to focus on is Congress acting ... and dealing with the debt limit," she said.

What is the 14th Amendment?

Section 4 of the 14th Amendment, known as the public debt clause, has become a focal point of the debate.

• The clause says that the "validity of the public debt" of the U.S. "authorized by law ... shall not be questioned," referring to debts incurred during the Civil War.

Has this come up before?

No president has ever used the amendment to resolve talks over the debt ceiling, which was introduced by Congress in 1939 and only in recent decades has become a tool for political leverage.

• But in 2011, when then-President Obama faced a similar situation to Biden, former President Clinton said publicly that he would invoke the 14th Amendment "without hesitation, and force the courts to stop me."
• Obama, like Biden, faced a standoff with Republicans, including a small but powerful right-wing flank, and ultimately landed on a deal that included GOP-backed spending cuts.

What are legal experts saying about it?

Leveraging the public debt clause in this scenario is a disputed legal theory, with some experts including Laurence H. Tribe of Harvard Law School, saying the clause could empower the president to deal with the national debt solo.

• Tribe, a Biden ally who in 2011 said that the White House and Congress shouldn't use the 14th Amendment to avert the debt crisis, reversed course in an op-ed earlier this month.
• He wrote that Biden must tell Congress "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."

Other experts say that invoking the 14th Amendment would be unconstitutional, including Philip Wallach, a senior fellow at the conservative American Enterprise Institute.

• "The Biden administration even flirting with these ideas really suggests that the administration’s fidelity to the Constitution is questionable or opportunistic," he told the Wall Street Journal.

Just one Supreme Court case, Perry v. United States, briefly touched on the 14th Amendment's public debt clause, but the high court has never directly addressed the theory.

What has Biden said about it?

Biden said Sunday from Hiroshima, Japan, on the last day of the G7 summit that he was "looking at the 14th Amendment" and said that he thinks "we have the authority" to use it with respect to the debt ceiling.

• "The question is could it be done and invoked in time that it would not be appealed as a consequence past the date in question," he added.
• Biden officials have also privately been skeptical that invoking the 14th Amendment would prevent a negative market reaction or survive judicial scrutiny.

Between the lines: Treasury Secretary Janet Yellen has previously dismissed Plan B options, such as the 14th Amendment — calling its invocation "legally questionable."

• She warned Monday again that the U.S. is "highly likely" to run out of money as early as June 1, leaving Biden and McCarthy — who met again Monday — just over a week to cut an agreement and line up the votes they need to get it done.

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