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With debt limit options narrowing, 14th Amendment chatter returns

Paul M. Krawzak, CQ-Roll Call on

Published in News & Features

“This administration does not believe that the 14th Amendment gives the power to ignore the debt ceiling,” Carney said, adding that such a move wouldn’t be seen as “a credible alternative” and “would not be taken seriously by the global economy and markets.”

After a two-week partial government shutdown, lawmakers cleared legislation on Oct. 16, 2013, to end the shutdown and suspend the debt ceiling — with no further conditions. It was the night before Treasury told lawmakers it would run out of cash and borrowing room.

But Neil H. Buchanan, a University of Florida law professor, made the case for invoking the 14th Amendment back then and reprised it this summer. In a July 27 article in Verdict, an online legal newsletter, he urged Biden to declare the Treasury will continue to borrow and pay bills even without the debt limit being raised.

“If that time comes, he must instruct the Treasury Department to pay all the bills in full, using exactly as much borrowed money as Congress’s duly enacted laws require,” he wrote.

Undermining confidence

Under the 14th Amendment, Buchanan said in an interview, the government “can’t do anything that undermines confidence in the validity of the public debt,” such as missing required payments.

 

Buchanan said if the president can’t borrow, he must cut spending, a violation of his constitutional duty to spend congressional appropriations. The president can’t raise taxes unilaterally to continue paying those bills either. Continuing to borrow is “the least damaging choice,” he said.

One prominent critic of Buchanan’s arguments, Harvard legal scholar Laurence Tribe, appears to have come around.

In 2011, Tribe argued that the amendment did not give the president authority to ignore the debt limit. But in a July 25 tweet, Tribe wrote that the amendment “prohibits any default on Treasury’s obligations” and that “if Congress fails to raise the debt limit, Executive action to avoid default arguably violates Congress’s exclusive power of the purse but is the lesser of two constitutional evils.”

Other academics contend there’s no basis for using the 14th Amendment to ignore the debt limit. “The 14th Amendment doesn’t authorize the taking of debt,” according to Ilya Shapiro, vice president and director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute. “That’s the bottom line.”

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