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President Joe Biden hosted the latest budget talks this week in the hopes of preventing a catastrophic default, though it remains an open question as to whether negotiators will be able to reach an agreement. If there is no deal, one of two things will happen: Either the United States will default on its obligations for the first time in history, or policymakers will need to circumvent the Republican Party’s extortion scheme.
House Democrats, for example, yesterday began moving forward with a discharge petition that would force a vote on a clean debt ceiling increase. While the underlying idea has merit, it continues to suffer from one significant flaw: To succeed, Democrats would need five pragmatic Republicans to partner with them. As things stand, those votes do not exist.
But this isn’t the only possible work-around. Last week, Rep. Jim Clyburn, a member of the House Democratic leadership and a close Biden ally, urged the president to be ready to use the 14th Amendment to circumvent Congress, and as NBC News reported, a growing number of senators are thinking along the same lines.
Some Senate Democrats are circulating a letter urging President Joe Biden to prepare to invoke the 14th Amendment to lift the debt ceiling and avert default on his own, without an act of Congress. The emerging letter, which is still in the works, is ... being led by Sen. Tina Smith, D-Minn., as well as Sens. Elizabeth Warren, D-Mass., Jeff Merkley, D-Ore., Ed Markey, D-Mass., and Bernie Sanders, I-Vt.
Circling back to our recent coverage, the 14th Amendment solution is sometimes derided as a “gimmick,” but it’s rooted in a relatively straightforward reading of the constitutional text, which states that “the validity of the public debt of the United States ... shall not be questioned.”
If the validity of the debt, under constitutional mandate, can’t be questioned, then it’s not up to Congress to pass legislation — it’s up to the executive branch to simply honor the nation’s obligations. Or put another way, if Biden and his team were to seriously pursue this, they would simply ignore the debt ceiling, note that the spending in question was already approved by the legislative branch through the appropriations process, and point to the 14th Amendment to say they have no choice but to follow the Constitution.
Treasury Secretary Janet Yellen recently described the approach as “legally questionable,” which is true. There are also open questions about the practicality of implementing the idea and the effects it might have on markets.
But with much of the GOP still prepared to impose an economic disaster on American families, and with a dangerous deadline drawing closer, the phrase “desperate times call for desperate measures” comes to mind.
What’s surprising about the ongoing debate, however, is that Democrats aren’t the only ones who see the constitutional solution as viable. The Kansas City Star reported that the idea has also “caught the interest” of Republican Sen. Josh Hawley of Missouri.
“I think if I were president, I would be tempted to do that,” Hawley said. “Because I would just be like, ‘Listen, I’m not gonna let us default. So end of story. Y’all will do whatever you want to do.’ But I’m not necessarily giving him that advice. It’s against my interest.”
Laurence Tribe, a professor emeritus at Harvard Law School and a recent convert to the 14th Amendment solution, told the Star, “The fact that Sen. Hawley is at least potentially on board with the idea that the president would not be bound by the debt ceiling is welcome news, but I wonder about his motives.”
That’s more than fair, given everything we know about the far-right senator and his record, but the bottom line remains the same: A growing number of Democrats want to see the White House circumvent Congress to resolve the GOP-imposed crisis, and now, a rather prominent Senate Republican has apparently said he sees value in the same idea.
It’s a point Biden might want to bring up the next time he sits down for talks with congressional leaders.