There Is No Constitutional End Run Around the Debt Ceiling
The Fourteenth Amendment doesn’t give Joe Biden a way out of this crisis.
With negotiations over the debt ceiling dragging on and the country running low on cash, many Democrats have urged President Joe Biden to take a unilateral action that will make those negotiations moot: Simply declare the debt limit unconstitutional. Last week, dozens of progressive House members signed a letter urging him to do so, and over the weekend, Biden expressed cautious sympathy for the argument. “I think we have the authority,” he told reporters, though he noted that the move would be challenged in court.
There is an excellent reason why this theory has never been tried in any of the dozens of times the country has approached the limit over the past 70 years: It’s wrong. Congress has maintained some form of a debt limit, without constitutional controversy, since the dawn of the republic. According to widely held legal principles, its existence creates no conflict with the Constitution, and the Supreme Court would almost certainly reject any attempt to argue otherwise.
The ignore-the-debt-limit idea hinges on the obscure public-debt clause of the Fourteenth Amendment, passed in the aftermath of the Civil War, which declares, “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.” If Congress fails to raise the debt limit, according to this line of thinking, the U.S. might not be able to come up with the money to service existing borrowing. If that happens, the argument goes, the debt limit would amount to an unconstitutional “questioning” of the nation’s debt. Faced with such a predicament, Biden would have the power, and perhaps even the obligation, to ignore the debt limit and continue borrowing in order to avoid default.
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. Some early American spending laws gave the president authority to borrow, but they always limited that authority in ways similar to what we see today. In 1793, for example, Congress appropriated a little more than $1.5 million for the expenses of the government and gave the president authority to borrow “any sum or sums, not exceeding, in the whole, eight hundred thousand dollars” for those expenses. This practice continued throughout most of the 19th century. The very same month that the Fourteenth Amendment was adopted, for example, Congress gave the executive branch a limited authority to issue “an additional amount of temporary loan certificates, not exceeding twenty-five millions of dollars.” The drafting history of the amendment is devoid of any sense that the public-debt clause would or could invalidate such legislation. Since 1868, Congress has tinkered with debt limitations more than 100 times.
There is no particularly good reason to think that the current crisis is different. Arriving at the so-called X-date—the point at which obligations exceed cash on hand—does not mean that the public debt of the United States would suddenly be dishonored. As Kristin Shapiro and I have argued elsewhere, if that day comes, the Treasury will still have sufficient cash to make interest payments on the public debt, and the principal can be lawfully “rolled over.” In at least one past debt-limit showdown, the Treasury had a plan to prioritize debt service in exactly this fashion.
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. In short, the broad and novel reading of the Fourteenth Amendment would create plenty of unconstitutional accusations to go around—many of which could be pointed at the president.
A more sophisticated constitutional theory, long advanced by the legal scholars Neil Buchanan and Michael Dorf, leans less on the vague authority of the Fourteenth Amendment and instead argues that the debt limit creates a kind of constitutional “trilemma.” If the nation has insufficient funds, this theory goes, the president must choose among three supposedly unconstitutional options: Reduce spending and usurp Congress’s spending power; raise taxes and usurp Congress’s taxing power; or breach the debt limit and usurp Congress’s borrowing power. Within that framework, Buchanan and Dorf argue that the third would be the “least unconstitutional” option.
Putting aside the substantial practical uncertainties—would there be a market for constitutionally suspect securities?—this framework rests on a flawed premise. Under-spending is not unconstitutional. Federal agencies sometimes run out of funds to accomplish legislative goals. Sometimes Congress doesn’t appropriate enough. Sometimes a natural disaster delays spending. (In a somewhat ungainly phrase, the comptroller general calls this a “programmatic delay.”) These familiar scenarios have happened for hundreds of years without anyone proclaiming a violation of the Constitution’s spending clause. In 1957, the Eisenhower administration actually canceled some expenditures to avoid breaching the debt limit. In the years since, the comptroller general has repeatedly acknowledged that the debt limit might lead to a spending shortfall.
None of this is to suggest that brinkmanship over the debt ceiling is a good thing. The limit was never intended to be an after-the-fact check on government spending, and arriving at the X-date would carry real risk and uncertainty. But the nature of the crisis is political, not constitutional. The solution will have to be political too.