Joe Biden’s 14th Amendment Folly

National Review Online

Monday, May 15, 2023

 

Joe Biden is musing aloud about violating his oath of office and seizing powers not granted him by the Constitution in order to avoid negotiating with the House of Representatives. This is a shameful way for the president of a constitutional republic to act.

 

The so-called 14th Amendment option — to have the president issue debt not approved by Congress — doesn’t actually exist. Until 2023, nobody in the executive branch has ever pretended that it does. “I have talked to my lawyers,” Barack Obama said in 2011, and “they are not persuaded that that is a winning argument.” Left-leaning legal scholars such as Laurence Tribe once agreed. Nothing has changed but the intensity of partisanship.

 

The Constitution is quite explicit: Congress, and only Congress, has the power “to borrow Money on the credit of the United States.” Congress, and only Congress, has the power to raise revenue, and all bills to do so must start in the House. The Framers were quite open in designing this system to give Congress the power of the purse so that it could bring the executive to heel.

 

Section Four of the 14th Amendment, designed to ensure the repayment of Civil War debts even over Southern objections, barred the federal government from repudiating its existing debts. But it did not, explicitly or implicitly, change the allocation of power to issue new debt. At the time, new issuances of debt were approved one at a time by Congress. The so-called debt ceiling instituted during the World War I is not a limit but a congressional grant of power to the Treasury to issue a certain amount of new debt, with discretion over time and terms. But once that new debt is exhausted, there is simply no authority in the executive branch to borrow more.

 

Why is the president openly mulling seizing power from Congress? Because Biden has, as usual, let the progressives who dominate his party box him into a corner from which the only exit is to flout the law.

 

It has long been the practice of presidents and Congresses of both parties to negotiate conditions before Congress raises the debt ceiling.  But after the showdown between congressional Republicans and President Obama in 2011, progressives decided that their party should henceforth refuse to negotiate and instead insist on principle on “clean” debt-ceiling raises, with no fallback position. The 2013 debt-ceiling fight reinforced their view that this was a workable strategy. Biden and Democratic leaders in Congress have thus talked themselves into Stalingrad-style “not one step backward” pronouncements against making even a penny of concessions.

 

Republicans have proven more flexible, passing a debt-ceiling increase through the House with enough attached that there is ample room to negotiate. Kevin McCarthy hasn’t publicly indicated what his bottom line is, but he plainly can’t get his caucus to sign a deal in which Republicans are supposed to get nothing and like it.

 

This can end only with one side blinking — either the Democrats will make concessions or the Republicans will fold — or with the government going into default for the first time in American history. Nobody wants that. Biden insists that a default would somehow be the fault of Republicans, but he could avoid it by signing the package they passed. He could propose his own counteroffer, but he hasn’t. The president is the one who hasn’t offered anything and is claiming he never will.

 

Both sides are playing a game of chicken with default, but Biden is the only one who is also threatening the constitutional order to get what he wants. If he goes down that road, it will have poisonous consequences, which Chip Roy has described to us as “open warfare” between the president and the House of Representatives.

 

When the Constitution and the 14th Amendment were written, if Congress refused to borrow more money, the government would just have to stop spending for a while until it could raise revenue. To the extent that the inability to borrow more money threatens an immediate default today, it is only because our system of budgeting, entitlement spending, debt, and deficits has been hopelessly broken by liberal spending policies. If even Democrats are now howling about fiscal Armageddon and threatening the Constitution over the consequences, perhaps it is time to start addressing the disease instead of just treating the symptoms.