As America hurtles toward default on its debts and the subsequent economic cataclysm, it’s looking as if President Biden is running out of options. He still has a way out — remaining prepared to invoke the 14th Amendment to pay the country’s bills after the debt limit is breached — but he seems to be taking this off the table in advance.
In doing this, Biden might inexplicably be cornering himself.
For months, Biden’s aides have said “we’re not going to negotiate” on raising the debt limit. But after House Republicans passed a debt limit hike tied to wildly extreme spending cuts, Biden entered negotiations over spending levels while insisting that the debt limit is nonnegotiable.
That only earned Biden reams of tendentious media coverage claiming he backtracked on his no-negotiation vow — with no credit for it being a principled original stand — and he-said/she-said reports that cast blame for the standoff equally. This encouraged Republicans to be more reckless.
Now, Biden seems to be undermining another piece of leverage: the 14th Amendment, which states that “the validity of the public debt” of the United States “shall not be questioned." As many legal scholars argue, Biden could simply order the Treasury Department to keep paying America’s debts, following his constitutional obligations.
Yet Biden’s comments suggest he’ll never invoke it, no matter what. He has said it “would have to be litigated." On Sunday, he indicated that acting unilaterally would take months to resolve in court, meaning market turbulence.
The White House believes attention on the 14th Amendment creates the impression of a way out of the crisis, reducing pressure on Republicans to drop the threat of default — on debts incurred by Congress itself — to extort extreme spending cuts.
We get this. But Biden aides have reportedly told lawmakers that this option would be dangerously destabilizing. That goes much further than arguing that it would be subject to litigation and makes it harder to adopt this course later.
Why do this? If nothing else, Biden should want Republicans to believe he’s prepared to adopt that course if necessary.
Biden is clearly sympathetic to the oft-stated idea that the constitutional option is too risky, because the Supreme Court might rule against it. The court “does what it wants to do,” argues Ezra Klein for the New York Times, insisting Biden would be blamed for resulting market chaos.
We’re sympathetic to this argument. But that risk alone can’t settle the matter.
First, it’s not clear the court would rule against Biden. To do so, it would have to decide that someone has legitimate grounds to sue to overturn the move and also declare that the court can settle this question in the first place.
Rep. Jamie B. Raskin (D-Md.), a constitutional law professor, points out that Biden doesn’t need the court’s blessing for the treasury secretary to simply keep paying the bills. Raskin asks whether the court would decide that anyone has “standing to challenge the government paying bondholders and Social Security recipients and veterans.”
“This is a court that has been fastidious about upholding standing doctrine,” Raskin noted. Even if that hurdle were surmounted, Raskin added, the court might declare this “a non-justiciable political question for the political branches to work out.”
It’s plausible the court could take such an off-ramp rather than trigger a recession. And if it didn’t, said Raskin, it would have to affirmatively decide that the debt limit statute can “override the explicit language of the Constitution."
Would the Supreme Court side with GOP efforts to throw the U.S. economy off a cliff amid its other legitimization crises? Maybe. But Cornell law professor Michael C. Dorf, who argues that the debt limit violates the separation of powers, notes that it very well might not.
“A favorable ruling or even a decision that courts should stay out could nullify the threat of future extortion," Dorf said. Why rule out this possibility in advance?
Most fundamentally, speculation that the court might “do what it wants to do” can’t be permitted to take this option off the table. As Raskin put it, this lets the court “intimidate the other branches of government into not following the text and clear meaning of the Constitution.”
We think a reasonable or non-awful congressional resolution is preferable, and if Biden can secure one, great. But it’s not clear this will be on offer. If the only choices are accepting extreme, destructive spending cuts under threat of default or unilaterally paying our debts, the perils of the latter should be weighed against those of the former. That’s an argument we should be having.
As Georgetown law professor Anna Gelpern notes, there’s danger in not being fully prepared to honor the country’s obligations and in allowing the integrity of U.S. credit to remain under threat of future extortion efforts. “There’s downside risk to telling the world Congress can keep doing this,” Gelpern said, adding that the standoff is already undermining confidence in the U.S. government.
Paradoxically, the more Biden expresses reluctance about the 14th Amendment, the more it encourages the public to perceive the standoff as a conventional budget negotiation. By contrast, if Biden flatly declared he will not allow extreme demands to interfere with his constitutional duty, Gelpern argues, the debate would be about “whether threatening to tank existing U.S. obligations is a legitimate tool.” Projecting a willingness to act could help Biden take charge of the debate.
There is no path here that doesn’t involve risk. At the very least, Biden should not make it harder for himself to follow the Constitution in defense of the country if and when it’s the only option left.
In doing this, Biden might inexplicably be cornering himself.
For months, Biden’s aides have said “we’re not going to negotiate” on raising the debt limit. But after House Republicans passed a debt limit hike tied to wildly extreme spending cuts, Biden entered negotiations over spending levels while insisting that the debt limit is nonnegotiable.
That only earned Biden reams of tendentious media coverage claiming he backtracked on his no-negotiation vow — with no credit for it being a principled original stand — and he-said/she-said reports that cast blame for the standoff equally. This encouraged Republicans to be more reckless.
Now, Biden seems to be undermining another piece of leverage: the 14th Amendment, which states that “the validity of the public debt” of the United States “shall not be questioned." As many legal scholars argue, Biden could simply order the Treasury Department to keep paying America’s debts, following his constitutional obligations.
Yet Biden’s comments suggest he’ll never invoke it, no matter what. He has said it “would have to be litigated." On Sunday, he indicated that acting unilaterally would take months to resolve in court, meaning market turbulence.
The White House believes attention on the 14th Amendment creates the impression of a way out of the crisis, reducing pressure on Republicans to drop the threat of default — on debts incurred by Congress itself — to extort extreme spending cuts.
We get this. But Biden aides have reportedly told lawmakers that this option would be dangerously destabilizing. That goes much further than arguing that it would be subject to litigation and makes it harder to adopt this course later.
Why do this? If nothing else, Biden should want Republicans to believe he’s prepared to adopt that course if necessary.
Biden is clearly sympathetic to the oft-stated idea that the constitutional option is too risky, because the Supreme Court might rule against it. The court “does what it wants to do,” argues Ezra Klein for the New York Times, insisting Biden would be blamed for resulting market chaos.
We’re sympathetic to this argument. But that risk alone can’t settle the matter.
First, it’s not clear the court would rule against Biden. To do so, it would have to decide that someone has legitimate grounds to sue to overturn the move and also declare that the court can settle this question in the first place.
Rep. Jamie B. Raskin (D-Md.), a constitutional law professor, points out that Biden doesn’t need the court’s blessing for the treasury secretary to simply keep paying the bills. Raskin asks whether the court would decide that anyone has “standing to challenge the government paying bondholders and Social Security recipients and veterans.”
“This is a court that has been fastidious about upholding standing doctrine,” Raskin noted. Even if that hurdle were surmounted, Raskin added, the court might declare this “a non-justiciable political question for the political branches to work out.”
It’s plausible the court could take such an off-ramp rather than trigger a recession. And if it didn’t, said Raskin, it would have to affirmatively decide that the debt limit statute can “override the explicit language of the Constitution."
Would the Supreme Court side with GOP efforts to throw the U.S. economy off a cliff amid its other legitimization crises? Maybe. But Cornell law professor Michael C. Dorf, who argues that the debt limit violates the separation of powers, notes that it very well might not.
“A favorable ruling or even a decision that courts should stay out could nullify the threat of future extortion," Dorf said. Why rule out this possibility in advance?
Most fundamentally, speculation that the court might “do what it wants to do” can’t be permitted to take this option off the table. As Raskin put it, this lets the court “intimidate the other branches of government into not following the text and clear meaning of the Constitution.”
We think a reasonable or non-awful congressional resolution is preferable, and if Biden can secure one, great. But it’s not clear this will be on offer. If the only choices are accepting extreme, destructive spending cuts under threat of default or unilaterally paying our debts, the perils of the latter should be weighed against those of the former. That’s an argument we should be having.
As Georgetown law professor Anna Gelpern notes, there’s danger in not being fully prepared to honor the country’s obligations and in allowing the integrity of U.S. credit to remain under threat of future extortion efforts. “There’s downside risk to telling the world Congress can keep doing this,” Gelpern said, adding that the standoff is already undermining confidence in the U.S. government.
Paradoxically, the more Biden expresses reluctance about the 14th Amendment, the more it encourages the public to perceive the standoff as a conventional budget negotiation. By contrast, if Biden flatly declared he will not allow extreme demands to interfere with his constitutional duty, Gelpern argues, the debate would be about “whether threatening to tank existing U.S. obligations is a legitimate tool.” Projecting a willingness to act could help Biden take charge of the debate.
There is no path here that doesn’t involve risk. At the very least, Biden should not make it harder for himself to follow the Constitution in defense of the country if and when it’s the only option left.
