Why Biden Can’t Use the 14th Amendment to Raise the Debt Ceiling

President Joe Biden delivers remarks on the debt ceiling at the White House on May 9, 2023. (Anna Moneymaker/Getty Images)

Commentary

Some Senate Democrats are urging President Joe Biden to “use” the 14th Amendment to raise the debt limit by executive decree. For example, Elizabeth Warren (D-Mass.) stated:

“The 14th Amendment is not anyone’s first choice. The first choice is that the Republicans raise the debt ceiling because the United States government never, ever, ever, ever defaults on its legal obligations. But if Kevin McCarthy is going to push the United States over a cliff, then it becomes the president’s responsibility to find an alternative path.”

As a former law professor and a senator for more than 10 years, Warren almost certainly knows that keeping the current debt ceiling doesn’t cause default. It merely forces the government to run a balanced budget—something the government should be doing anyway.

And all Warren needs to do is read the 14th Amendment to learn that it gives the president no power to “use” it to create more debt.

Not Raising the Debt Limit Just Means Balancing the Budget

The debt limit is a law restricting how much the federal government may borrow. The current law says $34.4 trillion. If Congress refuses to change the law, it will remain at $34.4 trillion. Borrowing more than that is illegal. So the government will have to pay its debt obligations out of current revenue.

Could the federal government do that? Sure.

Current revenue is about eight times current interest payments. (In other words, debt service is about 13 percent of revenue.) Obviously, there’s enough money coming in to pay existing debt while retaining most government services. Of course, the feds would have to trim other parts of the budget. I’m sure readers have many suggestions on that score.

These facts are no secret. Moreover, they’re buttressed by experience: We have reached earlier debt limits on many occasions, but there has been no default. Mostly what happens is a few federal facilities close. (When that happened last time, the feds closed Rocky Mountain National Park. No problem: The Colorado state government took over the job.)

Still, every time we approach a new debt limit, unscrupulous politicians and their media propagandists claim we’re at risk of default. This is so patently false that we can only conclude that what concerns them isn’t default but something else.

What is that “something else"? That people might learn they really don’t need all that exorbitant federal spending. That they might decide they like the budget being balanced.

The 14th Amendment

The 14th Amendment was ratified in 1868, soon after the Civil War. It’s the longest amendment ever adopted, because it addressed a multiplicity of issues. One reason for the amendment was to ensure that future Congresses, even if dominated by members from former Confederate states, would honor the Union Civil War debt.

The amendment has five sections. Sections 4 and 5 are relevant to our discussion. Here’s the pertinent language:

“Section 4. The validity of the public debt of the United States, authorized by law ... shall not be questioned ...

“Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

Notice what this language says:

• The validity of U.S. public debt shall not be questioned. This means that the federal government may not use any pretext for refusing to pay off debt instruments, such as savings bonds and Treasury bills.
• The amendment grants Congress the power to pass laws to ensure our debt obligations are met.

Now notice what this language doesn’t say:

• It doesn’t say the government must borrow more to pay off existing debt; Congress may meet its obligations from existing revenue.
• It doesn’t say Congress must change legal limits on borrowing.
• Although it grants power to Congress, it grants none to the president—other than to enforce the laws enacted by Congress. This is because the Constitution requires that the president “take Care that the Laws be faithfully executed” (Article II, Section 3). One of those laws the president must enforce is the national debt limit.

This Isn’t a Mere Technicality

The principle that a government’s financial powers are lodged in a representative legislature rather than the executive is central to our political system. Many people died for that ideal.

When, in the 17th century, King Charles I exercised financial powers without the approval of Parliament, it led directly to the English Civil War. The king lost that war and his head (literally).

Then, in the 18th century, King George III and a Parliament not representing Americans tried to tax Americans. This led directly to the American Revolution. Again, the king lost. He did keep his head, but he lost all his power within the United States and most of it within Britain.

Biden would be wise to consult these precedents.

The fact that people such as Warren should even mention the possibility of the president’s violating the law and unilaterally taking on more public debt tells us what we need to know about them.

The Makings of Calamity

One of the talking points among those who want to raise the debt limit is that failure to do so would be a “calamity.” Or so claims Treasury Secretary Janet Yellen. From experience, we know this isn’t true.

But here’s a real recipe for calamity: Imagine that to pay current debt without cutting spending, Biden tries to sell debt instruments on his own authority. (Call them “Biden Bonds.”) When the Supreme Court strikes down this autocratic edict (as it has struck down several of Biden’s other autocratic edicts), what then would be the effect on United States credit?

And since people in the bond market are risking their own money as Warren and Yellen are not, how many of them would be willing to purchase Biden Bonds? And if they refused to do so, what would that do to U.S. credit?

How Can We Avoid This in the Future?

For more than 50 years, a super-majority of the American people have favored a constitutional amendment forcing the federal government, except in rare cases, to run a balanced budget. That would stop the feds from piling up more and more debt.

In 2017, I wrote (admittedly, a first draft) of such an amendment. It isn’t overly technical. It merely says this: Before Congress may raise the debt limit—in other words, before it runs a budget deficit—Congress must get the approval of a majority of the legislatures of states containing a majority of the U.S. population (pdf).

There are two principal reasons we don’t have a balanced budget amendment: Congress refuses to propose one for the states to ratify, and apologists for the national oligarchy have been misleading Americans about the procedure for proposing an amendment through a convention of states.

Eventually, Americans will get fed up with the delay and force their state lawmakers to call a convention. Let’s hope it will not be too late.

Robert G. Natelson, a former constitutional law professor who is senior fellow in constitutional jurisprudence at the Independence Institute in Denver, authored “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015). Supreme Court justices have frequently cited his research in their written opinions, most recently on May 25, 2023.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.