The most glaring weakness of this theory is the fact that the Constitution gives authority over the debt to Congress, not the president. Article I commits to Congress the power to “borrow Money on the credit of the United States,” and the Fourteenth Amendment itself provides that Congress “shall have the power to enforce” its terms. These provisions are a formidable obstacle to unilateral presidential action. When the text of the Constitution speaks this clearly about which branch of government has the power to do what, the Supreme Court is apt to listen.
History poses another obstacle. Statutory limits on the executive branch’s ability to issue debt were common both before and after the Fourteenth Amendment was ratified in 1868, a fact likely to matter to an originalist Supreme Court. …
Even if we really did have insufficient funds to service our debt, the Fourteenth Amendment theory would have problems. In that worst-case scenario, the debt ceiling would be only one of several causal factors keeping the nation from making its payments. One could just as easily blame insufficient tax revenue or excessive spending. If Biden were to assert that the debt limit alone is what “questions” the public debt, he would open himself to the argument that his own spending agenda did so too—or to the charge that, by refusing a deal to end the crisis, he had violated his own oath to defend the Constitution.
[Needless to say, the entire idea is absurd. And it would take far longer to litigate it than it would to just suck up and cut a deal that includes some spending reductions. The House passed a bill raising the debt ceiling, and thus the onus is on Joe Biden and Chuck Schumer to act. — Ed]
Join the conversation as a VIP Member