The 14th Amendment* has come up repeatedly in conversations about the debt ceiling this go-round. For a while, reports (NYT, for example) about senior White House staffers considering the constitutionality of the debt limit gave the impression that the admin was open to the idea of invoking it to prevent the House GOP from blowing up the economy by defaulting.
Using the 14th Amendment to short-circuit economic hostage-taking is an attractive idea for several reasons. Lots of legal scholars believe the 14th is a solid way to disarm the GOP hostage-takers permanently (though that opinion is far from unanimous). It’s a “weird trick,” but maybe not as weird as minting a trillion-dollar coin. And many folks, including me, thought perhaps the talk about using the 14th was a signal that Biden will not swerve in this game of chicken with McCarthy.
However, in remarks to reporters earlier this week after meeting with Congressional leaders, Biden seemed to throw cold water on the 14th idea, at least as a fix for the current round of cliff-dancing. Here’s a CNN article with the relevant quotes:
“I have been considering the 14th Amendment,” he told reporters from the Roosevelt Room. He said a man he has “enormous respect for,” Larry Tribe, “thinks that it would be legitimate, but the problem is it would have to be litigated.”
“I don’t think that solves our problem now,” Biden said, adding he may reexamine in the long run.
“I’ll be very blunt with you, when we get by this, I’m thinking about taking a look at, months down the road, as to see whether what the court would say about whether or not it does work,” Biden said.
(Sigh.) As envisioned by most liberal pundits, the 14th as a solution to the current standoff would entail Biden instructing the Treasury to ignore the debt ceiling on the grounds that it’s unconstitutional and make Repubs litigate the issue if they’re so dead-set on tanking the economy. I suppose that move would spook the markets, but probably not as much as defaulting on the debt would?
It would kick the issue to the judiciary, so the question is, would the reflexively-hostile-to-Democrats Leonard Leo Court have the stones to torpedo the economy to hurt Biden politically? Maybe. Maybe not. But forcing them to rule on it — with the economy in the balance — seemed like part of the plan?
That’s the play most liberal commentators seemed to assume Biden had in mind, including Josh Marshall, who now suspects Biden’s comments indicate “the White House simply isn’t in shape for this fight” and fears the admin has an “attitude toward the courts and the broader political context which seems hopelessly stuck in the past.”
I think it’s way too soon to jump to that conclusion. But the remarks do seem to take the 14th Amendment off the table as a short-term solution. Biden also told reporters that he doesn’t think anyone has studied the feasibility of the coin, so that sounds like a nonstarter too given the timing. I sure hope the admin has other tricks up its sleeve. As usual, we’ll have to wait and see.
*The relevant clause: “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.” I’m not a lawyer, but using that clause to rule the debt limit unconstitutional seems like a more solid argument than interpreting the 2nd Amendment to mean everyone can own AR-15s.