They’ve urged Biden to invoke the 14th Amendment to tackle the issue solo. That could be complicated.
As the US inches closer and closer to a projected default deadline, progressives in Congress have an increasingly pointed message for President Joe Biden: Don’t write off tackling the debt ceiling alone.
Those calls center on Biden invoking the 14th Amendment, which states that the “validity of the public debt of the United States … shall not be questioned,” a provision that some legal scholars argue would enable him to address the national debt on his own.
Sunday, Biden said the White House likely has the authority to go this route — but also highlighted a central issue with that approach.
“I’m looking at the 14th Amendment as to whether or not we have the authority — I think we have the authority,” Biden said at a press briefing in Japan. “The question is, could it be done and invoked in time that it would not be appealed, and as a consequence pass the date in question and still default on the debt. That is a question that I think is unresolved.”
Progressives argue that invoking the 14th Amendment is worth considering because a potential deal with Republicans could involve drastic cuts to key social programs, and because a compromise emboldens the GOP strategy of insisting on policy concessions in exchange for their support on raising the debt ceiling. Some progressives also worry that House Republicans can’t actually deliver the votes needed to raise the ceiling.
In a Politico interview, progressive Rep. Ilhan Omar (D-MN) acknowledged invocation of the 14th Amendment could potentially lead to court challenges and market instability, but said “those are bridges that we can cross when we get to [them].” The White House seems less willing to figure out how to overcome the strategy’s issues on the fly, however. One White House adviser told Politico in a Saturday story the option has not been completely ruled out, but that it’s not “currently part of the plan.”
The divide underscores some of the long-simmering tensions between progressives, who have urged the White House to be more ambitious on policies and act unilaterally when needed, and Biden, who has a history of seeking bipartisan solutions.
Progressives’ push comes as Republicans have batted down White House offers, including a proposal that would have kept both military spending and spending on other domestic programs relatively flat. Calls from progressives have continued throughout the weekend, though Biden spoke Sunday about the potential uncertainty of going this route.
Biden went on to say that he remains hopeful that Democrats and Republicans can come to a deal ahead of a default, which could happen as early as June 1, according to projections from Treasury Secretary Janet Yellen. The two parties are set to meet again on Monday evening as they work to hammer out a potential agreement.
Why progressives want Biden to invoke the 14th Amendment
The progressive calls for the invocation of the 14th Amendment began with a group of senators including Bernie Sanders (I-VT) and Elizabeth Warren (D-MA), and has been joined by 66 progressive House lawmakers, who argued for the move in a Friday letter.
“We, the undersigned, cannot support a harmful agreement that undermines our shared achievements, and we would choose a solution invoking the 14th Amendment of the Constitution over a bad deal,” the House lawmakers, led by Reps. Omar, Pramila Jayapal (D-WA), and Greg Casar (D-TX), wrote.
Progressives’ advocacy is fueled by the concern that the domestic spending cuts needed to secure Republican support could have a devastating impact on social programs. House Republicans’ debt ceiling proposal — the Limit, Save and Grow Act — initially suggested returning discretionary spending levels to those of fiscal year 2022, which could mean slashing the budgets for a host of programs like housing assistance and nutrition services.
Those cuts raised alarm for many Democrats, though progressives have the added fear that potential concessions in these talks may include permitting reforms that expedite fossil fuel projects, and more restrictive work requirements that reduce access to social programs like SNAP.
“We believe that relenting to Congressional Republicans’ economic ransom and negotiating on devastating budget cuts, additional work requirements for essential food and economic support, and fast-tracking fossil fuel projects that undermine our shared climate achievements is antithetical to our shared Democratic values,” the House progressives wrote in their Friday letter.
Beyond the policy changes that could result from a deal, progressives have also warned that any agreement which caves to Republican demands helps reaffirm the GOP’s strategy of using the debt ceiling — which they previously raised repeatedly during the Trump administration — as leverage when there’s a Democratic president.
“Surrendering to these extremist demands also sets a dangerous precedent that emboldens Republicans to pursue additional, anti-democratic hostage taking, particularly after having been told previously that a clean debt-ceiling increase was nonnegotiable,” House progressives wrote in their letter.
Their missive follows another letter from 11 Senate Democrats including Sanders and Warren similarly urging Biden to consider invoking the 14th Amendment. Democrats have also expressed concerns that House Republicans won’t be able to get their conference behind a potential deal and the need to have a fail-safe if that ends up happening.
Strategically, progressive leaders have said, too, that keeping the 14th Amendment option on the table helps give Biden and Democrats leverage in negotiations, by suggesting to Republicans that they have alternative options. It’s unclear how much of a deterrent the amendment actually is for Republicans, however, especially given invoking it is an untested strategy likely to be challenged in court.
Why Biden has pushed back on these calls
On Sunday, Biden seemed to suggest that time was among the issues that made an invocation of the 14th Amendment a complicated option to consider.
In his statement in Japan, Biden noted that even though the White House could have the authority to pursue this avenue, it’s not evident it would make it beyond a court challenge before the default deadline, meaning the US could default in the interim. Treasury Secretary Janet Yellen has said that deadline is June 1.
Yellen is also among those with concerns about trying to invoke the 14th Amendment this close to the default cliff. “It doesn’t seem like something that could be appropriately used in these circumstances, given the legal uncertainty around it and given the tight timeframe we’re on,” she said on NBC’s Meet the Press on Sunday.
As Vox’s Ian Millhiser explained, although the courts could uphold Biden’s invocation of the amendment, it’s not guaranteed that they would do so quickly enough to avoid a default. This uncertainty, not to mention even a short-lived default, could cause its own economic turmoil, amid concerns that the US might not be able to pay its bills, he notes:
There are very strong legal arguments that the debt ceiling does, indeed, violate the 14th Amendment. But these arguments have never been tested. No court has ever ruled on whether the debt ceiling is unconstitutional. And only one Supreme Court case has ever even applied the 14th Amendment’s Public Debt Clause — and that case, Perry v. United States (1935), did so only briefly.
The worst-case scenario, even if the Supreme Court ultimately invalidates the debt ceiling, is that even a brief debt limit breach could irreparably harm public confidence in the United States, causing economic harm that will last for many years.
If the US defaulted, even briefly, that would severely undercut global trust in the country’s ability to cover its expenses, likely driving up the government’s borrowing costs, and downgrading its credit rating.
Biden and Yellen’s concerns about this possibility means bipartisan negotiations are still the likely off-ramp to the debt ceiling standoff, though a deal has proved elusive so far. In 2011, negotiators came within 72 hours of default before finding an agreement that increased the debt ceiling and put spending caps in place. It’s looking possible that a similar scenario could play out yet again.
