31 May 2023 — 0650 mdt
Why Joe Biden didn’t invoke the
14th Amendment to solve the debt ceiling crisis
By James Conner
When we think of the 14th Amendment, which Congress passed on 13 June 1866, and which was ratified on 9 July 1868, we usually think of equal rights under the law and Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
We seldom think of Section 4, which leading constitutional scholars (see Buchanan and Dorf at dorfonlaw.org) believe requires the federal government to borrow money and pay our debts even when the statutory debt ceiling is reached:
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. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
But President Biden didn’t invoke Section 4. He had two reasons.
First, the definitive meaning of Section 4 has not been established by the nation’s highest court. Therefore, there is a possibility that Section 4 might not be applicable to a debt ceiling crisis.
Second, there is no widespread public knowledge of Section 4. I would be surprised to learn that even one of ten Americans are familiar with it. Therefore, there is no overwhelming national consensus on its meaning. Biden did not have the political support required to employ Section 4 to resolve the debt ceiling crisis in luie of a debt ceiling deal.
Does Biden’s decision not to invoke Section 4 preclude its employment in the future? No. We’ll be hearing more about it as responsible politicians look for ways to never again have a debt ceiling that can be used by a tiny minority of fanatics to extort economy wrecking concessions from the majority.