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NextImg:Why the 14th Amendment should be kept out of a debt ceiling crisis

With the news that the Treasury Department may exhaust its extraordinary measures as soon as the beginning of June, this year’s debt ceiling confrontation is rapidly coming to a boil without a deal in sight. House Republicans and President Biden’s White House are making incommensurable demands, preparing for combat, and shifting blame instead of finding a way out of the impasse.

There is still plenty of time to bargain or kick the can down the road with a short-term suspension of the debt limit. Still, it is easy to understand why some in the White House are currently contemplating steps the president might take to avoid default all on his own. According to the New York Times’s Jim Tankersley, they are considering a declaration that language in the Constitution’s 14th Amendment requires Treasury to issue enough debt to meet all the government’s legally incurred obligations.

That would effectively render the statutory debt limit a nullity—and it would represent a major constitutional provocation by the president. It would be a horrible mistake.

No doubt, President Biden’s partisan supporters would be delighted. For those who have internalized the president’s rhetoric about Republican “hostage-taking” around the debt ceiling, playing a constitutional trump card would seemingly defang unprincipled opponents and forever spare the nation future debt limit embarrassments. As Paul Krugman tweeted , “Rs are trying a financial version of January 6; this cannot stand.”

But invoking the 14th Amendment has some truly damning problems.

First, it is simply bad constitutional law. When the amendments says “the validity of the public debt … shall not be questioned,” it is barring repudiation of debt, not authorizing the means of repaying debt. Failing to make timely payments on the government’s obligations would be bad, but it would in no way imply any sort of repudiation. There is no real solution here.

Second, much more importantly, it would open the door to serious executive abuses that Congress would be powerless to stop, short of (the clearly unreliable process of) impeachment. Back in the 19th century, Congress actually micromanaged debt issuance, explicitly passing laws for each new batch of debt. Since Word War I, Congress has chosen instead to manage the top-line amount outstanding through the statutory debt limit. If Biden were to turn to the 14th Amendment, he would effectively be saying that this long-established political practice was unnecessary and indeed invalid and that whenever Congress appropriates money, it is simultaneously empowering the Treasury Department to sell enough debt to meet that obligation.

That may sound self-limiting but would in fact create lots of room for mischief. Most federal government spending does not come in the form of dollar-specified discretionary appropriations. Instead, permanent appropriations (“entitlements”), sensitive to executive branch manipulation, constitute the lion’s share of our spending. Wiping out the debt ceiling in a way that rules out congressional interference with executive debt-issuance would give the president free rein.

I make this case as someone who has long argued that the current form of the debt ceiling is counterproductive and ought to be eliminated. But it is one thing to believe that Congress ought to choose a more sensible way of keeping the nation’s fiscal house in order and quite another to believe that the president should permanently eject them from this process.

This brings us to the third and most important shortcoming of using the 14th Amendment: It is irreversible. Once Biden has staked out this position, it is hard to see how Democrats could ever agree to return to debt limit negotiations.

If, on the precipice of “ X-Date ,” the administration was determined to continue meeting debt obligations, a much better option would be to simply issue debt without saying anything about the constitutional validity of the debt ceiling. New debt issuance would proceed under a cloud of legal uncertainty—but most market participants would probably assume that an imminent deal would remove that uncertainty. And they would probably be right! As long as ambiguity and discomfort were the problems, rather than a grand confrontation, parties could still accommodate each other and end the crisis.

If one believes that House Republicans are all determined to bring about default, then keeping the door open to a deal is cold comfort. But that is not a reasonable reading of the situation. Indeed, although tensions are undeniably high, there is really nothing so extraordinary about this year’s fiscal standoff. Legislators have found solutions before, and, notwithstanding panicked commentary, they need to be given the chance to do so again. Kicking them out of the process would be a cure much worse than the disease.

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This article originally appeared in the AEIdeas blog and is reprinted with kind permission from the American Enterprise Institute.