The Biden administration floating an invocation of the 14th Amendment to prevail over the debt limit fight has prompted an array of legal experts to support such a move while bringing some to warn of unforeseen consequences that could prompt the review of the highest court.
Last week, speculation on how the amendment that helped free the slaves and enshrined "equal protection under the laws" would apply to Democrats' desire to raise the debt limit shot up in public discourse after news emerged that President Joe Biden's advisers were considering such a strategy as the country could default on its debts as soon as June 1.
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Section 4 of the 14th Amendment, enacted during the Civil War, states, "The validity of the public debt of the United States, authorized by law … shall not be questioned." Some experts, including Harvard Law professor Laurence Tribe, have suggested Section 4 offers the president the authority to order the nation’s debts to be paid regardless of the debt limit Congress installed more than 100 years ago.
"That’s the argument that’s being made in a lawsuit filed last week by the National Association of Government Employees," Tribe told the Harvard Gazette on Monday, adding that "they are asking for a declaration that the debt ceiling is unconstitutional and unenforceable, and an injunction against enforcing it."
Tribe said he wouldn't "advise" Biden to file his own lawsuit but said the high court could ultimately take up the issue under NAGE's lawsuit if it were so inclined.
The justices could ultimately take the suit "on behalf of civilian and military federal employees who plausibly allege that their jobs are in jeopardy because the executive branch has left open the possibility that it’ll treat the debt ceiling as binding on it," Tribe said, adding it was plausible "despite the 14th Amendment’s mandate that all the federal government’s debts be paid, and because Congress has threatened not to raise the ceiling unless the president makes concessions that he says he will not make."
Brian Ginsberg, a partner at Harris Beach who has argued more than 20 times at the federal appeals court level, told the Washington Examiner, "That theory is wrong," referring to the assertion that Section 4 could somehow override Congress's power of the purse.
"And the reason is because of Section 4’s 'authorized by law' language. Only federal debt 'authorized by law' enjoys 'unquestioned' status," Ginsberg said.
Disagreeing legal experts like Ginsberg have suggested undercutting the limit set by Congress would be an unprecedented move that would tee up a constitutional dilemma with massive implications on top of a potential financial crisis.
In layman's terms, a door would be left open to a "great deal of mischief" if the president were allowed to "unilaterally exceed the congressionally authorized debt limit," Ginsberg said.
Still, experts said a Supreme Court review would be far from guaranteed.
Case Western Reserve University Law School professor Jonathan Adler told the Washington Examiner he believes the "real question" is "whether bond markets would accept it or not."
If Biden decided to rely on the 14th Amendment to bypass Congress's debt limit, it's not even clear who would have "basis for standing," or the ability to bring forth a lawsuit, due to the executive branch's broad immunity to lawsuits, according to Adler.
Likewise, Ginsberg said it "would be difficult to think of a person or entity who was uniquely affected in some more individualized way" and that it would likely be dismissed by a judge on the grounds that the suit presents a "political question."
Despite threats of lawsuits, legal experts told the Washington Examiner that the Supreme Court may try to avoid the issue altogether as the recurring fights over the debt ceiling have always amounted to political disagreements, a feature that is likely to keep the justices as far away as possible.
Additionally, the justices would be wary of creating any major economic uncertainty.
But Biden acknowledged last week that the theory, if executed, "would have to be litigated."
Adler said any legal challenge, should the administration invoke the 14th Amendment to bypass Congress's stalemate on raising the debt ceiling before a June 1 deadline, is not "clear" at this time.
"It's not clear what the suit would be if we get the case into the courts, certainly not on a time frame that the court would be likely to resolve," Adler said.
But the "legal issues there are serious [and] the arguments that the executive branch could essentially bypass the debt limit are quite audacious and ones that have been considered and rejected for years," Adler contended.
It remains to be seen whether Biden will attempt to use the 14th Amendment to break the stalemate in Congress over the debt ceiling. Treasury Secretary Janet Yellen has also said it's "legally questionable whether or not that’s a viable strategy."
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Biden will head back to the negotiating table over the debt ceiling on Tuesday in a meeting with House Speaker Kevin McCarthy (R-CA) as they work to seek out an agreement on raising the debt limit.
The pair met two weeks ago, but a second meeting was canceled last Friday, a move the White House signaled was positive because it signaled staff-level talks were going well.