Why some Democrats think Biden shouldn't worry about legal challenges that would come from getting rid of the debt ceiling forever

Why some Democrats think Biden shouldn't worry about legal challenges that would come from getting rid of the debt ceiling forever
U.S. President Joe Biden.Anna Moneymaker/Getty Images
  • A US default could be days away, and Congress still doesn't have a debt ceiling deal.
  • Some Democrats think Biden should use the 14th Amendment to address the crisis.

Debt ceiling talks between President Joe Biden and Speaker of the House Kevin McCarthy aren't going well, and a default on the nation's debt could be as soon as nine days away.

That's why a growing number of Democratic lawmakers are urging the president to solve the crisis without Congress, even as Biden seems to doubt his authority to do so.

On Monday evening, McCarthy and Biden met once again to attempt to reach an agreement on raising the debt ceiling and avoiding an unprecedented default. While both leaders said the talks were "productive," there appeared to be minimal progress toward a deal — and McCarthy told reporters on Tuesday that he is not close to reaching an agreement at this point.

With a default looming, some Democrats think Biden should take care of the debt ceiling on his own by invoking a clause in the 14th Amendment that states that "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."

Experts and lawmakers have said that this clause makes a default, and therefore the debt ceiling, unconstitutional, getting rid of the issue forever.


"Even a broken clock is right twice a day," Vermont Sen. Bernie Sanders wrote on Twitter on Monday. "In 2016, Trump was correct when he said: 'This is the United States government. First of all, you never have to default because you print the money.' It's time for the President to invoke the 14th Amendment & avoid a catastrophic default."

Sanders joined 10 of his Democratic colleagues last week in urging Biden to prepare to invoke the 14th Amendment, and the Congressional Progressive Caucus joined the push one day later. The CPC also noted that the debt ceiling conflicts with all the spending bills already passed by Congress, writing in a letter to Biden that "not only does the debt ceiling run counter to the Constitution's mandate that the validity of America's public debt shall not be questioned, it contradicts the appropriations law that requires the Treasury to issue debt for the funding you are obligated to administer at Congress's direction."

But Biden, and members of his administration, aren't so sure. On Sunday, Biden said during a press conference in Japan that "I'm looking at the 14th Amendment, as to whether or not we have the authority. I think we have the authority."

"The question is: Could it be done and invoked in time that it would not be appealed and, as a consequence, pass the date in question and still default on the debt," he continued. "That's a question that I think is unresolved."

Treasury Secretary Janet Yellen also expressed concerns with the 14th Amendment's legality, previously saying that "there would clearly be litigation around that; it's not a short-run solution. It's legally questionable whether or not that's a viable strategy."


But when the choice is between potential lawsuits or a default, some Democrats think the choice is clear.

Why some Democrats think Biden shouldn't worry about legal challenges that would come from getting rid of the debt ceiling forever
Democratic Sen. Sheldon Whitehouse.Anna Moneymaker/Getty Images

Why Biden shouldn't worry about legal challenges

No president has ever invoked the 14th Amendment to address the debt ceiling. While the issue picked up steam during the 2011 debt-ceiling standoff, Congress managed to reach a last minute deal — but former President Bill Clinton said at the time that he would've invoked the clause "without hesitation, and force the courts to stop me."

Should Biden choose to invoke the 14th Amendment to address the current debt ceiling crisis, Republicans would likely sue (McCarthy, for example, has said he opposes the president taking that route). But the overarching belief among Democrats and experts who support that path think that the possibility of a lawsuit should not deter Biden from acting.

"I believe that the Supreme Court would stay out of this one," Democratic Sen. Sheldon Whitehouse told reporters on a Monday call hosted by think-tank Roosevelt Institute. "The last thing they need right now, and the last thing that they're justified to do with the unresponsive, unaccountable branch of government, is to be meddling in default and in financial and finance quarrels between the elected branches."

"There's a window before the Supreme Court signs off on it where there will, in fact, be uncertainty," Whitehouse continued. "But one would hope that you could find a way if really, the kind of consequences that we foresee are happening, to get quickly to the Supreme Court, have them resolves the question quickly, and frankly, the sooner you begin that process, the sooner you end that process."


Democratic Rep. Jamie Raskin also told Insider in an interview last week that he's not sure who would even have the standing to sue the Biden administration over invoking the 14th Amendment. "There's a binding legal requirement to pay bondholders, there's a binding legal requirement to pay Social Security and Medicare recipients," Raskin said. "So the president can't violate those statutory directives, nor can he violate the constitutional command."

Everything from a default to using the 14th Amendment to get rid of the debt ceiling is unprecedented, so it's impossible to know what exactly would happen in the event of either of those scenarios. But pressure is on for Congress to act, and if they don't, a constitutional route to address the issue might be on the horizon.