Skip to content

Debt crisis: Biden should seek a 14th Amendment legal ruling. Trump just showed why

An aggrieved Trump might not force a default this time — but what about the next cliff?

President Joe Biden delivers remarks on the debt ceiling at the White House on Tuesday.
President Joe Biden delivers remarks on the debt ceiling at the White House on Tuesday. (Getty Images)

President Joe Biden is getting a crash course in the proverbial buck stopping on his actual desk.

Voters are expressing deep concerns about his overall job performance, his handling of the economy and the 80-year-old’s “mental sharpness.” Polls show his once-indicted predecessor, with more state and federal charges possible, paradoxically is the 2024 general election front-runner. And Biden is just 21 days (as of Friday) away from being the first U.S. president to oversee the country defaulting on its debts.

Biden in the coming weeks must choose between several options to possibly avoid plummeting off the dreaded fiscal cliff. Not a single option guarantees the country doesn’t default on or around June 1. None would ensure a smooth path toward an outcome. And none is without great economic, constitutional and political risk for a president who just announced a reelection bid.

Biden formally entered talks with GOP leaders this week in the wake of a dismal Washington Post-ABC News poll that put his approval rating at an all-time low of 36 percent, although Biden has struggled to keep his approval rating north of 40 percent, a bumpy roller coaster-like ride.

When one is president, the adventures just never stop.

Janet L. Yellen, Biden’s Treasury secretary, has succinctly described the two options for Biden’s next big one. Only he isn’t choosing between an exotic summer vacation and a quaint holiday at his Delaware beach house.

In the words of Yellen, also a former Federal Reserve chief, his choices are either an “economic and financial catastrophe” or a “constitutional crisis.”

The former refers to watching the country default, should Biden determine he cannot strike a deal with McCarthy and Republicans. The latter refers to a never-before-used tactic: attempting to utilize the 14th Amendment to stop just short of the economic abyss.

“All I want to say is that it’s Congress’ job to do this. If they fail to do it, we will have an economic and financial catastrophe that will be of our own making,” Yellen told ABC News on May 7.

The White House meeting he hosted Tuesday with Speaker Kevin McCarthy, R-Calif., and the other congressional leaders was more perfunctory than productive. It did little to produce a deal that could pass both chambers of Congress and garner his signature.

No final agreement was expected Tuesday. However, such initial meetings are necessarily perfunctory, to ease nervous financial markets.

The longer all sides go without a deal, the more pressure will build on Biden to make what would be an unprecedented decision: invoking the 14th Amendment to avoid the cliff. There’s nothing perfunctory about that.

Biden said Tuesday he has “been considering the 14th Amendment.”

“And a man I have enormous respect for, Larry Tribe, who advised me for a long time, thinks that it would be legitimate,” Biden said, referring to the attorney and constitutional scholar who penned a Sunday New York Times op-ed calling on Biden to use the 14th to end the stalemate — and a precedent for future presidents to also do so.

“The right question is whether Congress — after passing the spending bills that created these debts in the first place — can invoke an arbitrary dollar limit to force the president and his administration to do its bidding. There is only one right answer to that question, and it is no,” Tribe added.

Muddying the legal waters, Yellen two days prior had gotten too far out in front of the boss, in merely the latest piece of contradictory messaging from a top Biden administration official.

“There is no way to protect our financial system and our economy other than Congress doing its job and raising the debt ceiling and enabling us to pay our bills,” she told ABC. “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.”

Though he did not rule out invoking the 14th on Tuesday, Biden acknowledged the legal questions about its applicability to the debt ceiling.

“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,” he said of the debt limit.

In a fascinatingly candid moment, the president made clear he has had it with fiscal cliffs and wants a definitive legal ruling on the 14th’s applicability to the federal borrowing limit.

“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 … what the court would say about whether or not … it does work,” he said.

‘Unconstitutionally acting’

Not so fast, say GOP lawmakers, sensing they can make Biden blink as the default deadline nears.

McConnell on Wednesday said, “Unconstitutionally acting without Congress [is] not an option,” adding that “the one way to prevent a pointless avoidable crisis” is for Biden to “reach a spending deal” with McCarthy.

At issue is Section 4 of the 14th Amendment, which 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.”

With no deal in hand come May 31, the question of whether Biden should head out to the Rose Garden and declare he is invoking the 14th Amendment is causing a stir on Capitol Hill.

Go for it, say some Senate Democrats.

“I think we should work very hard here in Congress to prevent a default. And the House Republicans need to take their finger off the detonator. But I support having the president explore all legal options to prevent a default,” said Chris Van Hollen, D-Md., a member of the Budget and Banking committees and Georgetown University Law Center graduate.

“And again, yeah, that’s exactly Plan A: Congress should do the right thing,” he added. “Plan B, don’t default: Make sure you use all your legal authorities to prevent it.”

Senate Finance Committee member Benjamin L. Cardin called using the 14th Amendment “divisive” and urged the president to keep talking to GOP leaders. But, if a deal cannot be brokered, he said Biden should do what he has to do.

“It seems to me that if the president exercises that power, the courts are going to say, ‘This is a battle between Congress and the executive branch’ and allow it to go forward,” the Maryland Democrat said. “So I think the president has that authority. I think he can do it.”

Sen. Jon Tester, D-Mont., said invoking the 14th “would be better than defaulting,” adding he has concluded “our Constitution is pretty clear.”

Biden has a point that the matter needs a legal review — and, likely, a decisive Supreme Court ruling. So even if he decides doing so this time is too legally flimsy, he would do the country a favor by finding out if there is a way to put fiscal cliffs in the rearview mirror once and for all.

‘Have to do a default’

The matter appeared more urgent after former President Donald Trump, during a Wednesday night CNN town hall, called on GOP lawmakers to force a debt default.

“I say to the Republicans out there — congressmen, senators — if [Democrats] don’t give you massive cuts, you’re going to have to do a default,” Trump said as an audience of GOP and undecided voters hooted, cheered and howled. They seemed uninformed about, or perhaps unmoved by, economists of all stripes agreeing Americans’ portfolios and financial accounts would be adversely affected by a federal default.

Perhaps Trump is just finally tired of all that “winning” — despite his 2020 defeat, record in congressional elections, recent court rulings, and a spate of ongoing state and federal criminal probes that could lead to more rulings against him.

Or maybe he is so obsessed with his one-sided war with the federal system that he is willing to permanently damage it by giving his congressional loyalists these marching orders: “Well, you might as well do it now, because you’ll do it later.” That might mean a future cliff that Biden has to deal with.

If there is no substantial progress soon, Biden would be wise to begin the legal review process. A smart first step would be instructing the Justice Department’s Office of Legal Counsel, the executive branch’s go-to to resolve such quandaries, to quickly assess whether Tribe’s theory stands on solid legal ground. Trump, as only he can, made clear Biden might need it before he leaves office.

Editor-at-Large John T. Bennett, a former White House correspondent, writes a weekly column for Roll Call, parts of which first appeared in the subscription-based CQ Senate newsletter.

Recent Stories

Democrats mark abortion ruling anniversary with targeted outreach

Roads to the House majority: Interstate 5

Battleground House matchups to be set in New York, Colorado

Bowman fights for survival as Maloy, Tenney also face primaries

At Aspen conference, a call to prioritize stopping gun violence

Appeals court rules preventive care task force unconstitutional