On Tuesday, President Joe Biden expressed interest in using the 14th Amendment to resolve the debt standoff, but he also expressed concern about the idea getting caught up in litigation. However, the constitutional scholar who first suggested the idea, Harvard professor Laurence Tribe, disagreed with Biden's concerns on Wednesday, calling them misplaced.
According to Tribe, there is no reason for Biden to worry about the 14th Amendment idea getting caught up in litigation, and he hopes the president realizes this. This is Tribe's latest effort to persuade Biden to consider using new legal arguments to resolve the debt ceiling standoff. Tribe first brought up the 14th Amendment idea in a May 7 op-ed in The New York Times, where he argued that the debt ceiling should be ignored so that the president can execute other laws passed by Congress.
During a press conference on Tuesday, President Biden expressed his willingness to consider using the 14th Amendment to end the debt ceiling crisis. However, he mostly dismissed the idea of pursuing this option in the current context. He pointed out that since the use of the 14th Amendment would face legal challenges, it could raise questions about default and trigger market instability. He stated that he would explore this option only after resolving the current crisis.
Biden expressed that he would consider looking into the idea of utilizing the 14th Amendment after the current standoff is resolved.
According to an interview with Tribe, he argued that House Republicans cannot sue the president for utilizing the 14th Amendment, even though they have suggested they might do so. Tribe believed that the Supreme Court would dismiss such a case, even if it were to stretch the concept of standing.
Tribe questioned how anyone could find someone with standing to sue the president and the treasury secretary for following Congress's spending instructions. He also stated that it is unclear what a court could prohibit them from spending money on.
Biden expressed his respect for Tribe on Tuesday, stating that he has been advised by him "for a long time." However, Tribe did not disclose whether he is currently in communication with the White House regarding the 14th Amendment approach.
The crux of Tribe's argument is that Congress cannot pass laws mandating the executive branch to spend money and incur debt while also setting a separate limit on that spending.
With the possibility of the United States approaching a default, there has been increased interest in utilizing the 14th Amendment to continue payments on spending approved by Congress. The amendment's wording that the nation's debts "shall not be questioned" is the basis for this concept, which has gained traction as the country nears a financial crisis. Although the idea has the support of Democrats on Capitol Hill, they remain cautious about it due to potential legal challenges. However, the Biden administration is reportedly serious about exploring the use of the 14th Amendment to avoid similar situations in the future, as the debt limit has been deemed to be a "formula for periodic crises" by some legal experts such as Laurence Tribe.
Senator Dick Durbin, the Democratic whip, expressed his personal opinion in favor of testing the use of the 14th Amendment, but he also acknowledged the time constraints and the potential risks of a last-minute court battle as the June 1 deadline approaches.
According to Rep. Jamie Raskin (D-Md.), a former constitutional law professor at American University, if the current debt ceiling standoff continues, there is a clear constitutional obligation to pay debts. Raskin acknowledged that there is little to no precedent for using the 14th Amendment in this way. However, the president may be faced with a difficult decision to either violate the Constitution or break laws requiring payments to bondholders and Social Security recipients.
Republicans, who are seeking to use the debt limit as leverage to reduce spending, are against the idea of using the 14th Amendment. “Unconstitutionally acting without Congress is also not an option,” said Senate Minority Leader Mitch McConnell. While Harvard professor Laurence Tribe, who has been pushing the idea of using the 14th Amendment, is not sure how the White House could officially declare its invocation, he believes it wouldn't be difficult to implement.
According to Tribe, the logistics of how the White House could formally invoke the 14th Amendment is still unclear. He believes that it could potentially be done through an executive order or a directive in the form of a presidential statement, but he has not worked out the specifics. He expressed confidence that Stu Delery, the President's White House counsel, would be working hard on finding a solution if Congress refuses to cooperate.
Burgess Everett contributed to this report.
The 14th Amendment is being discussed as a potential way to avoid default by the U.S. government. The debt ceiling, which sets a limit on how much the government can borrow, is considered by some constitutional experts to be a violation of the 14th Amendment, which states that the "validity of the public debt of the United States, authorized by law...shall not be questioned." The Biden administration could potentially challenge the legality of the debt limit by having the Treasury continue to issue new debt to meet its financial obligations, rather than seeking congressional approval to raise the debt limit. This idea is supported by Laurence Tribe, a constitutional law scholar and professor emeritus at Harvard Law School, who argues that Congress cannot use an arbitrary dollar limit to force the president to comply with its wishes after passing spending bills that created the debts in the first place. However, some, including Senate Minority Leader Mitch McConnell, have warned against using the 14th Amendment to avoid the debt ceiling, arguing that it would be unconstitutional.
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