The 14th Amendment touches on many aspects of citizens’ rights and is commonly known for its “equal protection of the laws.” The Amendment has appeared in cases such as Brown v. Board of Education, Roe v. Wade, Bush v. Gore and more.
Many legal scholars suggest a clause in the 14th Amendment that says the “validity of the public debt, authorized by law … shall not be questioned” could apply to the debt limit.
Legal experts argue that Section 4 of the 14th Amendment allows the Treasury Department to keep borrowing money past the debt limit and that it would be unconstitutional for the U.S. to fail to make payments.
Which lawmakers are for — and against — invoking the 14th Amendment?
In the House, 66 members of the Congressional Progressive Caucus called on Biden Friday to “choose a solution invoking the 14th Amendment of the Constitution over a bad deal.” A few of the lawmakers include Congressional Progressive Causus Chair Pramila Jayapal (D-Wash.), Reps. Ilhan Omar (D-Minn.) and Greg Casar (D-Texas).
“Surrendering to these extremist demands also sets a dangerous precedent that emboldens Republicans to pursue additional, anti-democratic hostage taking, particularly after their having been told previously that a clean debt-ceiling increase was nonnegotiable,” the lawmakers write.
Rep. Alexandria Ocasio-Cortez (D-N.Y.) has also said she thinks invoking the 14th Amendment “should be on the table” and “that the grounds for it are legitimate.” Rep. Jamie Raskin (D-Md.) said Biden has a “clear constitutional command” to go around Congress if he must in order to avoid a default on the nation’s debt obligations. Rep. Jim Clyburn (D-S.C.) called on Biden to use the 14th Amendment, telling MSNBC that he “hopes that the president will take executive action if the House refuses to do its job.”
At least 11 Senate Democrats are urging Biden to invoke what they say is his constitutional authority under the 14th Amendment to raise the nation’s debt limit without having to go through Congress. Some of the senators include Tina Smith (D-Minn.), Bernie Sanders (I-Vt.), — who caucuses with Democrats — Ed Markey (D-Mass.), Jeff Merkley (D-Ore.) and Elizabeth Warren (D-Mass.).
“Using this authority would allow the United States to continue to pay its bills on-time, without delay, preventing a global economic catastrophe,” the senators wrote in a letter to Biden dated Thursday.
Biden earlier this month said he’s “considering” the use of the 14th Amendment as a means to circumvent the debt ceiling, though he cast some doubt on whether it could work.
Treasury Secretary Janet Yellen last week said: “It’s legally questionable whether or not that’s a viable strategy.”
Senate Minority Leader Mitch McConnell is against invoking the 14th Amendment and said, “Unconstitutionally acting without Congress [is] not an option.”
How likely is Biden to use the 14th Amendment?
It’s not looking too likely.
White House officials have privately said that they do not see the 14th Amendment as a viable way to get around debt negotiations. While they think Biden would have the legal authority to pull the trigger if he chose to, they say it’s not worth the risk of blowing up negotiations with Congress or damaging the world’s faith in U.S. creditworthiness.
“They have not ruled it out,” one adviser to the White House told POLITICO. “But it is not currently part of the plan.”
Instead, White House negotiators are advocating for a pact that lifts the debt ceiling into 2025 and caps spending for as little as two years.
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