NRPLUS MEMBER ARTICLE W ith debt-ceiling talks ongoing but uncertain, President Joe Biden and his advisers are entertaining the nuclear option: unilateral action to continue borrowing without the consent of Congress. House Republicans have passed a bill to extend the government’s borrowing authority, but also included spending restraint, reductions in the growth of the national debt, and work requirements for welfare. Although President Biden had claimed he would only sign a “clean” debt-ceiling raise, he recently appointed two high-level White House officials to negotiate with Speaker Kevin McCarthy and the House leadership.
After a pause, negotiations appear set to continue. But if they come to naught, McCarthy and Biden risk a financial Armageddon. If the Treasury Department cannot borrow more money beyond the current $31.4 trillion cap, it may have to stop interest payments on the national debt or Social Security and health-care benefits. Default would upend the $24 trillion Treasury market, which finances the government and provides the largest and safest bond investments in the world, and thereby cripple the American and global economies.
Faced with this disaster scenario, or just to give him a bargaining advantage, Biden may embrace a constitutional theory reportedly being debated by officials at the White House and the Justice and Treasury Departments. According to this view, expounded by, among others, progressive legal theorist Laurence Tribe, the president can issue new federal debt without congressional approval under Section 4 of the 14th Amendment to the Constitution. Sixty-six progressives in Congress have sent Biden a letter urging him to take this course.
Ratified in 1868, the public-debt clause, set forth in Section 4 of the 14th Amendment, states: “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.” That clause also declares that the debt of the Confederacy “shall be held illegal and void.” Progressives believe that the Constitution forbids default on the national debt; therefore, the president, who takes an oath to uphold the Constitution and to execute the laws, could issue new debt to maintain interest payments on the old debt.
As National Review’s Dan McLaughlin and Charles Cooke have separately argued, such a claim misreads the Constitution by ascribing to the president powers over debt that only Congress can exercise and has exercised. But there is a principle at stake even more fundamental than Congress’s power of the purse. The Framers hardwired into the Constitution the structures of the separation of powers and federalism. They were so elemental that the text does not even have separation of powers or federalism clauses — instead, their rule comes through numerous provisions and sections. Progressives have always sought to overcome these obstacles to centralized government. Their argument in favor of a presidential debt power is yet another effort to undermine the American constitutional tradition.
A Biden effort to raise the debt ceiling unilaterally runs smack into the Constitution’s provisions on borrowing and spending. Progressives’ focus on the (first sentence of the) public-debt clause ignores the clauses that concern Congress’s powers of the purse. In Article I, section 8, the Constitution grants to Congress alone the powers “to lay and collect Taxes” and “to pay the Debts and provide for the common Defense and general Welfare of the United States.” Article I, section 8, clause 2 gives Congress alone the power to borrow money.
Article I, section 9 underscores the exclusively legislative nature of these powers by stating that “no Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” That language categorically enjoins the president, the Treasury, and any other federal agency from expending funds without congressional appropriation — no matter how urgent the need. Even if Congress disregarded its explicit constitutional duties to pay the salaries of the president and Supreme Court justices, Treasury funds could not be withdrawn to cover the shortfall.
If the president could borrow money “on the credit of the United States,” he also could compel Congress to raise taxes to cover the debt he had issued or to spend amounts beyond those authorized by statute. No president has that constitutional power, even in an emergency. But if Congress has the power to borrow money, it necessarily has the power to limit the amount borrowed — that is, to set a cap on the size of the national debt. Debt management is the prerogative of Congress: It controls the purse strings, and the executive must live within its limits.
It is implausible to maintain that the public-debt clause alters that basic scheme by empowering the president to issue public debt not authorized by Congress. The Framers publicly explained during the ratification fight over the Constitution that Congress’s exclusive power of the purse constituted a fundamental legislative check on the government. The House, James Madison wrote in Federalist No. 58, “cannot only refuse, but they alone can propose, the supplies requisite for the support of government.” During the Virginia ratifying convention, Madison rebutted Patrick Henry’s prediction that the president would concentrate all powers in his hands with the simple recitation of the principle that all Framers knew: Parliament’s power of the purse gave it the ultimate check on executive authority. “The sword and purse are not to be given to the same member,” Madison said. Under the British constitution, “the sword is in the hands of the British King. The purse is in the hands of the Parliament. It is so in America, as far as any analogy may exist.” Or, as Madison explained in the Federalist No. 58, Parliament’s use of “the engine of a money bill” had secured for centuries its “continual triumph . . . over the other branches of the government.”
Proponents of a presidential debt power require us to believe that the Framers of the 14th Amendment, who bitterly opposed President Andrew Johnson’s Reconstruction policies, understood their work to upend the fundamental legislative check on the executive — including its main constitutional check on the executive’s power to make war. The original understanding of the 14th Amendment provides little support for this idea.
If we were to disregard constitutional history, we might conceivably read Section 4 of the 14th Amendment — as some of Biden’s advisers reportedly have done — so broadly that it prohibited any governmental action that raised substantial doubt about the validity of the public debt. The original public meaning of the clause, however, shows that the clause only bars Congress from directly repudiating the federal debt. The clause does nothing to undermine the constitutionality of a debt ceiling, which does not repudiate the public debt but instead limits its enlargement.
To “question the validity” of a debt was a legal term of art at the time of the ratification of the 14th Amendment. To “question the validity” of a legal instrument was to challenge its legality before a court or legislative body. A contemporary treatise on commercial law states thar “an assignment is only fraudulent and void as to those creditors who choose to question its validity.” The treatise further explains, “the instrument is deemed valid until a creditor, by filing his bill [i.e., by bringing a legal challenge in court] calls it in question.”
The drafting history of Section 4 points to the same conclusion. Congress did not insert the clause until late in its consideration of the 14th Amendment. Its addition — like that of the rejection of Confederate debt or compensation of slave-owners — responded to the prospect of a largely white Democratic Party winning elections after the readmission of the southern states (with greatly enlarged representation because of the end of slavery). Section 4 prevented any later Congress from repudiating the national debt (including the Union war debt) and inflicting severe losses on the creditors who had supported the Union. As Senator Benjamin Wade, one of the most influential Republican proponents of Section 4, explained:
I have no doubt that every man who has property in the public funds will feel safer when he sees that the national debt is withdrawn from the power of a Congress to repudiate it and placed under the guardianship of the Constitution.
The public-debt clause eliminates any power Congress may originally have had to repudiate lawful debts. That is a lesser restriction on Congress’s power than a positive requirement that Congress avert a default on the debt. And even if Congress did have a broader constitutional obligation to prevent a default and failed to discharge that duty, that failure would not empower the president to avert a default independently of Congress, even if a default looms because of a breakdown of negotiations between the branches. At best, the clause may require the president to prioritize interest payments on the debt over other federal spending when allocating the uses of incoming tax revenues. But it does not create a new power in the president to issue new debt obligations or appropriate new spending on his own.
Understanding the public-debt clause in this manner harmonizes it with the rest of the Fiscal Constitution in a way that the progressives’ reading cannot. While the public-debt clause forbids Congress from directly repudiating the public debt, Congress otherwise retains full power to manage and limit its size.
If a president assumes the existence of an emergency power to avert a (supposedly unconstitutional) default, then he must also be able to select the means by which to do so — such as the sale of federal assets. Biden might seek to prevent a default by issuing new debt. But a President Trump could instead put Yellowstone National Park up for sale to prevent the same result. A President DeSantis could market the Post Office instead of government bonds.
And why limit this emergency power to the circumstances created by Congress’s failure to avoid a default? Wouldn’t such a power be activated whenever Congress failed to discharge a constitutional duty? If Biden believed that Congress was failing in its constitutional duty to provide adequately for the national defense, why couldn’t he unilaterally issue “Biden bonds” to cover the gap he saw? He would not even have to wait for a debt default to be imminent. The president could have claimed that the Covid emergency gave him the power to reallocate spending according to the White House’s favored agenda, such as mass transit, green energy, and mandatory vaccines, and away from fossil fuels or market-based economic solutions. Democrats did not need to pass the Inflation Reduction Act in 2022 after all; under the progressives’ constitutional theory, Biden could have just used the national-security threat posed by Covid as an excuse, even without waiting for Treasury to hit the debt ceiling. Even in the darkest days of the Civil War, Abraham Lincoln did not think his powers went so far. Even as the threats of Nazi Germany and Imperial Japan loomed, FDR still worked with Congress to rearm and to pass Lend-Lease.
Flip things around: If Congress’s failure to discharge its constitutional duty to pay the national debt gives the president the authority to do so unilaterally, then surely the failure of the president to discharge his constitutional responsibility to enforce the law would justify Congress in stepping into the breach and executing the law itself. This is no fanciful hypothetical: The Biden administration is arguably refusing to execute the immigration laws through its restoration of the DACA and DAPA programs. Congress could claim the president has defaulted on his constitutional duty to carry out the laws and create its own independent agency to patrol the borders and remove illegal aliens. Under progressive theory, the Supreme Court could raise taxes and order that interest payments resume too, since Section 4 of the 14th Amendment identifies no branch of government for its execution.
None of this is likely because the Constitution instead relies on the president and Congress to negotiate over the public debt, just as they must struggle over most issues of legislative policy. Congress could pass a clean debt-ceiling extension, but it need not. Biden could veto the House’s current proposal because of its spending riders, but he need not. The Founders designed the separation of powers to demand a high level of consensus before Washington, D.C., can exercise the awesome powers at its command. Conjuring nuclear options of unilateral presidential borrowing and spending would only undermine, rather than reinforce, the Constitution’s original design.
Robert Delahunty is a Washington Fellow of the Claremont Center for the American Way of Life. John Yoo is a law professor at the University of California at Berkeley, a nonresident senior fellow at the American Enterprise Institute, and visiting fellow at the Hoover Institution. They are the authors of The Politically Incorrect Guide to the Supreme Court, out from Regnery in June.