Could President Biden use the 14th Amendment to head off a debt default?

Previous presidents have declined to use the 14th Amendment to prevent a federal default on the national debt. But May 9, President Joe Biden cracked open the door to deploying an untested legal strategy involving the amendment best known for granting citizenship to enslaved Black Americans following the Civil War.

Biden faces a standoff with House Republicans over a looming breach of the debt limit and proposed spending cuts from Republicans that he considers untenable. Although President Barack Obama considered using the 14th Amendment during a debt ceiling standoff in 2011, he decided against it, questioning the move’s ability to withstand legal challenge.

In court, the government could argue that it faces two irreconcilable laws: the debt limit, and the requirement to pay the bills it owes. It could point to the 14th Amendment and say that the concept of a debt limit runs afoul of the Constitution.

"I have been considering the 14th Amendment," Biden told reporters following a meeting with congressional leaders. He said a legal scholar he trusts, Laurence H. Tribe of Harvard University, has recently come out in favor of using the amendment to head off default.

Biden added that internal discussions have been underway, but he acknowledged that the legality of such a move "would have to be litigated," making the tactic’s usefulness dependent on the courts’ agreement. 

Treasury Secretary Janet Yellen echoed Biden’s caution at a meeting of finance ministers and central bankers in Japan, saying it was "legally questionable whether that’s a viable strategy."

The debt limit is a statutory dollar figure that constrains how much debt the federal government can carry at a given time to pay for its operations. The debt ceiling now in effect is projected to be breached as soon as early June, which would mean the government couldn’t pay its bills, including payments to employees, contractors and, most urgently, bondholders whose confidence in the solvency of the U.S. government undermines the international economy.

House Speaker Kevin McCarthy, R-Calif., and congressional Republicans narrowly passed a bill that would return funding for federal agencies to fiscal 2022 levels and limit government spending’s future growth. But Biden has argued the debt limit must be addressed on its own, with future spending negotiated over Congress’ annual spending bills. 

McCarthy has said he opposes Biden using the 14th Amendment to skirt this dispute.

So, how could using the 14th Amendment shape the battle over the debt limit? Here’s a rundown.

The 14th Amendment enshrined the concept of "equal protection." But one of its provisions, Section 4, also addresses debts on the government’s books. The debt clause was initially intended to ensure the formerly Confederate states would not shrink from shouldering Union debts, and that the U.S. would not have to pay reparations to people who had enslaved others.

The relevant part of Section 4 for the current debt battle is: "The validity of the public debt of the United States, authorized by law … shall not be questioned."

Some legal experts see the 14th Amendment as a way to void the debt limit. This would curb the increasingly routine use of the debt limit as leverage in government spending debates and would ease the risks to the broader economy that a purposeful or even an accidental default could cause. 

A president would argue in court that the 14th Amendment invalidates the statute that limits the federal debt’s size. If the courts declare the debt limit statute unconstitutional, the U.S. could keep paying its bills indefinitely, thus preventing a potential default and the resulting economic damage.

Legal scholar Neil H. Buchanan of the University of Florida told PolitiFact that because the debt limit and the government’s obligation to pay debts are both law, Biden would have to choose which takes precedence — "and there's no baseline that he could point to."

Michael C. Dorf of Cornell Law School, who has written with Buchanan about this option, wrote in 2021 that borrowing beyond the debt limit would be the "least bad" option.

Tribe’s views on the issue have evolved. In 2011, when the U.S. nearly defaulted during a debt-limit fight, Tribe urged Obama not to invoke the 14th Amendment. Tribe now urges Biden to use the amendment.

The question, Tribe wrote in a New York Times op-ed, "is whether Congress — after passing the spending bills that created these debts in the first place — can invoke an arbitrary dollar limit to force the president and his administration to do its bidding. There is only one right answer to that question, and it is no. And there is only one person with the power to give Congress that answer: the president of the United States."

Tribe cited President Abraham Lincoln’s brief override of civil liberties in 1861 to save the Union, telling Congress, "Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" 

In 2011, former President Bill Clinton said that if he were still president, he’d invoke the 14th Amendment at once and "force the courts to stop me." But Obama, then the president, demurred. The parties instead hashed out a spending agreement that both chambers approved and the president signed, though the close call still led to a downgrade in some firms’ U.S. credit ratings.

It remains unclear what legal advice presidents have received, then or now. The Office of Legal Counsel, a Justice Department office tasked with providing advice on constitutional law, has not released its reasoning.

There’s wide agreement that using the 14th Amendment to end the debt dispute entails legal risk.

"The only case remotely on point is Perry v. United States," which was decided in 1935, Dorf told PolitiFact. In that case, Supreme Court justices ruled 5-4 that a bondholder had to be paid the dollar amount of the bond, not the original weight of gold used in dollars at the time of purchase (which had been reduced by the time the lawsuit was filed).

In that case, the majority wrote that although the 14th Amendment’s debt provision stemmed from Civil War realities, it possesses a "broader connotation." The justices said it applies to government bonds at issue in the case "and to others duly authorized by the Congress."

The 1935 court interpretation could encourage people who would like Biden to use a 14th Amendment argument.

But Buchanan cautioned that Perry v. United States "did not directly rule on the question. So as it stands, there is no binding precedent either way."

The debt limit fight could land in court either way: If the government is forced to stop paying its bills, an unpaid creditor could sue for not getting paid.

Using the 14th Amendment would be "a pretty significant gamble on the part of the president," Mark Zandi, chief economist at Moody's Analytics, told Reuters. "But that's probably his best option if you get into that scenario."

PolitiFact Copy Chief Matthew Crowley and Researcher Caryn Baird contributed to this report.