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President Joe Biden and Speaker of the House Kevin McCarthy, R-Calif., in Washington on March 17, 2023.
President Joe Biden and Speaker of the House Kevin McCarthy, R-Calif., in Washington on March 17, 2023.Drew Angerer / Getty Images file

What if Team Biden decides the debt ceiling is unconstitutional?

What if the Biden White House were to go around Republicans and reject the debt ceiling as unconstitutional? The idea is apparently on the table.


A few months ago, Federal Reserve Chairman Jerome Powell was asked about possible solutions to the Republicans’ debt ceiling crisis — some of which might involve creative policymaking involving the Fed. Powell was dismissive of such talk.

“There’s only one way forward here,” he replied, “and that is for Congress to raise the debt ceiling so that the United States government can pay all of its obligations when due.”

At face value, the response was quite sensible. For generations, Congress has prevented the U.S. from defaulting on its obligations by simply dealing with the debt ceiling. Powell’s answer was predicated on the idea that lawmakers have an obligation to do so again. It’s the “only” way forward.

But what if it’s not?

To be sure, the obvious resolution to the GOP-imposed crisis will run through Capitol Hill, either with a clean bill or a ransom. There’s room for potential legislative creativity — see discharge petitions, for example — but every debt ceiling solution has always been approved by lawmakers, and it stands to reason this year’s crisis will follow the same trajectory.

But in light of the radicalization of congressional Republicans, there’s growing talk about other solutions that would circumvent Congress altogether. Chatter about a trillion-dollar coin has made a comeback, for example, as has speculation about premium bonds and consol bonds.

There’s one “gimmick,” however, that warrants special attention, which some in the Biden administration are considering. The New York Times reported:

A standoff between House Republicans and President Biden over raising the nation’s borrowing limit has administration officials debating what to do if the government runs out of cash to pay its bills, including one option that previous administrations had deemed unthinkable. That option is effectively a constitutional challenge to the debt limit. Under the theory, the government would be required by the 14th Amendment to continue issuing new debt to pay bondholders, Social Security recipients, government employees and others, even if Congress fails to lift the limit before the so-called X-date.

In January, the White House indicated that it wouldn’t consider this approach. But in January, Biden still thought GOP lawmakers might act like responsible adults — and now we all know better.

If you’ve been reading me for a very long time, you might recall that I first covered this approach 12 years ago, not long after Bill Clinton endorsed the idea, which came to be known as the “constitutional option.” It’s rooted in a relatively straightforward reading of the 14th Amendment, 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.

And what, pray tell, would congressional Republicans do in response to such a move? It’s likely GOP lawmakers wouldn’t be pleased — hostage takers are never happy when someone sneaks their hostages out the back door — and they’d take the matter to court.

I won’t pretend to know what would happen then, but the fact that some folks in the administration leaked this internal chatter to the New York Times suggests the idea — which I happen to think is sound — is on the table. What's more, if this were to work out, it wouldn't just resolve the ongoing crisis we're facing now, it would also end all future debt ceiling standoffs going forward.

Watch this space.