Legal experts and GOP lawmakers are warning of severe consequences, including impeachment and a sovereign debt default, should President Joe Biden invoke the 14th Amendment to unilaterally raise the U.S. debt ceiling.
The 14th Amendment of the Constitution says, “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.” Added to the Constitution after the Civil War, Biden has suggested that its text may enable him to pay existing U.S. debts by borrowing more money to do so, even without Congressional authorization. (RELATED: ‘Substantial Movement’: Biden Optimistic On McCarthy Meeting Over Debt Ceiling)
However, legal experts and Republican lawmakers who spoke to the Daily Caller News Foundation disagreed. They have said that should Biden do so, it would bring about Congressional challenges and protracted legal battles that may eventually lead to a default.
“The president cannot unilaterally do this unless he wants to risk an impeachable offense,” said Richard Epstein, the Laurence A. Tisch professor of law at New York University, adding that Biden’s legal case “doesn’t have a prayer in hell of standing.” Epstein explained that the phrase “authorized by law” in the 14th Amendment means that any debt to be issued requires the approval of Congress, which has the sole power to make laws under the Constitution, adding that one must “read the whole sentence” to understand the clause.
He was joined by Andrew McCarthy of National Review Institute, who told the DCNF that “[t]he president is sworn to uphold the Constitution and execute the laws — including the statutory debt ceiling — faithfully. The failure to do these things is obviously impeachable.” McCarthy, a former federal prosecutor and Fox News legal contributor, added that invoking the 14th amendment “would be the most unconstitutional move of his presidency,” and that “any debt he purported to issue based on this deeply flawed interpretation of the amendment would be worthless.”
Republican Rep. Lauren Boebert of Colorado, told the DCNF that “Nothing in the 14th Amendment gives the President the power of the purse. Under Section 5 of the 14th Amendment, Congress—not the President—has the enumerated power to enforce Section 4,” and that it was “an action most legal scholars and even his own Treasury Secretary strongly disagree with.”
On Sunday, Treasury Secretary Janet Yellen said that invoking the amendment would lead to a “constitutional crisis.” She added: “There is no way…other than Congress doing its job and raising the debt ceiling,” to avoid a default.
Other legal scholars, such as Jonathan Turley of The George Washington University, and lawmakers such as Senate Minority Leader Mitch McConnell, have also warned Biden against such a move, with McConnell saying that it was “not an option”.
Biden, by contrast, has cited Harvard law professor Laurence Tribe as an authority on the debt ceiling. Tribe, who has been a supporter of Democrats, has said that the U.S. must “pay all its bills as they come due, even if the Treasury Department must borrow more than Congress has said it can,” according to a New York Times op-ed he wrote on the subject.
Tribe also wrote that doing so would “not be usurping Congress’s lawmaking power or its power of the purse,” as Boebert has claimed. However, while stating that Tribe’s views were “legitimate,” Biden has acknowledged that the measure would likely face litigation in federal courts.
Epstein dismissed Tribe’s argument as a “crazy position” and tantamount to a “juvenile argument” based on necessity rather than law. “It’s clear that they just can’t do it,” he said, adding that “necessity is the plea of tyrants.”
Attorney General Merrick Garland didn’t immediately respond to the Daily Caller News Foundation’s request for comment.
This article has been updated with comments from New York University law professor Richard Epstein
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