WASHINGTON — Call it the “in case of emergency, break glass” option: The president invokes the Civil War-era 14th Amendment to the Constitution to ignore the statutory debt limit and continue to borrow if lawmakers can’t agree to give the Treasury Department more borrowing room.
With lawmakers and the White House careening toward the diciest debt limit confrontation since the Obama administration-GOP battles of 2011 and 2013, the possibility is real that the U.S. government might not be able to meet its commitments in full and on time. The deadline, according to Treasury, is sometime next month, but the sooner the better in order to calm financial markets, officials say.
“There is a big difference between avoiding default by months or minutes,” Treasury Secretary Janet L. Yellen wrote in The Wall Street Journal on Sunday, citing the 2011 debate that went down to the wire and led Standard & Poor’s to downgrade U.S. credit.
But with Republicans taking a hard line and 60 votes likely needed to advance a debt limit measure in the evenly divided Senate, there’s no clear path to avoiding what Yellen calls “default” on U.S. obligations.
No one, least of all the White House, is talking publicly about the possibility that President Joe Biden might consider, for the first time ever, ordering Treasury to defy the $28.4 trillion debt ceiling and continue to borrow.
But Biden was there as vice president during the Obama-era fights with intransigent Republicans, and his entire agenda could be at risk if there’s another extended stalemate over the full faith and credit of the United States.
Separation of powers
Setting borrowing limits has always been a power reserved to Congress, to which the Constitution grants sole authority to raise revenue, spend taxpayer dollars, “pay the debts” and “borrow money on the credit of the United States.”
But some scholars argue that if the Congress does not raise the debt limit, the president can justify continuing to borrow money by citing the “Public Debt Clause” of the 14th Amendment, which was ratified in 1868, three years after the Civil War ended.
The 14th Amendment granted citizenship to most individuals born or naturalized in the U.S., including Black people, though the status of Native Americans wasn’t clarified until 1924. The 14th Amendment also barred anyone who engaged in rebellion or treason from serving as a state or federal official.