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President Biden raised a few eyebrows in that he's said he isn't ready to invoke the 14th Amendment and ignore the debt ceiling... yet. From Reuters

President Joe Biden said on Friday he was not yet ready to invoke the 14th Amendment to avoid the United States defaulting on its debts as early as June 1, comments which for the first time suggested he has not ruled out the option.

I've not heard of this option before. What is the theory behind using the 14th Amendment to allow the President and/or Treasury Secretary to ignore the debt ceiling?

14th Amendment

Section 4

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.

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    See Section 4: Validity of public debt. And Section 1 if you think of debt as owed property. Commented May 9, 2023 at 16:28
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    The direct approach would be to declare the debt ceiling unconstitutional because the 14th amendment says that the public debt shouldn't be questioned, while the debt ceiling says it should. Maybe law.SE can explain much more of the legal details. Commented May 9, 2023 at 16:52
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    The first sentence in the quote is illustrative, if you trim the fat: "The validity of the public debt of the United States [...] shall not be questioned". Seems to bar either 1) the country intentionally defaulting on debts already accrued, or 2) the idea that a legislative "debt ceiling" can be applied to prevent the creation of new public debt, if not both together.
    – aroth
    Commented May 11, 2023 at 6:02
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    @aroth The 14th Amendment does not seem to say anything about the creation of new public debt. The debt ceiling could probably still be seen as at least a prevention of new debt. Anyway, the 14th amendment can probably not prevent a possible bankruptcy. This cannot be prevented by words alone. Just imagine Greece or Argentina would have had such amendments. Lenders would have sued them. Commented May 11, 2023 at 6:50
  • @FrederikVds But this ordering of new roads debt is kind of short term and the borrowing on the financial markets is the really long term thing that matters. One could see it as irresponsible action to order new roads if you already know that you cannot pay the builders that will build that road. One could say that once the debt ceiling becomes inconvenient, people suddenly search for ways to ignore it somehow, even though they were fine with it before. Commented May 11, 2023 at 8:18

2 Answers 2

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The debt ceiling fight is about funding and permitting the government to pay for costs and debts that have already been incurred by prior duly passed legislation. It is not, intrinsically, a fight about how much new spending should be done, or if old spending should be curtailed with new legislation. Those are part of normal legislative negotiations and processes, and are brought in here as points of leverage: add/get rid of these expenditures or we won't let you deal with pre-existing costs and debts.

And a layperson's reading of the 14th amendment, at least, seems to make it abundantly clear that this is categorically prohibited. The debts cannot be questioned, therefore you can't impose a ceiling on debts incurred by already and to-be passed legislation (except through new legislation changing how much debt such things create, such as simply repealing things, or adding new taxes, etc.). For what else is that but questioning whether those debts are legitimate or should be paid? Those are done deals.

The debt ceiling fight is intrinsically a retroactive fight by one Congress against the actions of a previous Congress they no longer agree with, looking to undo the "problems" they created or "fix" what they missed (note that usually these are just dog whistles for "we want to repeal the accomplishments of the other side for no other reason than that they are accomplishments of the other side", or just virtue signals for "small government" etc.—re-election politics). Not through a normal legislative process, but by refusing to service those existing debts and obligations until a manufactured and wholly artificial crisis emerges that can be exploited to force through legislative ends you'd otherwise have no hopes of achieving.

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    It seems to me that the whole question is about the part that you've stated is "abundantly clear". How is having a limit on debt that prevents taking on new debt somehow "questioning" the existing debt?
    – DCShannon
    Commented May 22, 2023 at 19:47
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zibadawa timmy's answer is basically correct, that is the theory. To add some quotes from someone detailing it (in NYT):

The theory builds on Section 4 of the 14th Amendment to argue that Congress, without realizing it, set itself on a path that would violate the Constitution when, in 1917, it capped the size of the federal debt. Over the years, Congress has raised the debt ceiling scores of times, most recently two years ago, when it set the cap at $31.4 trillion. [...]

Section 4 of the 14th Amendment says the “validity” of the public debt “shall not be questioned” — ever. Proponents of the unconstitutionality argument say that when Congress enacted the debt limit, effectively forcing the United States to stop borrowing to honor its debts when that limit was reached, it built a violation of that constitutional command into our fiscal structure, and that as a result, that limit and all that followed are invalid.

OTOH that piece rejects as such

I’ve never agreed with that argument. It raises thorny questions about the appropriate way to interpret the text: Does Section 4, read properly, prohibit anything beyond putting the federal government into default? If so, which actions does it forbid?

There's also the "lite" version that say one has to choose the "least unconstitutional/illegal" measure:

Ignoring one law in order to uphold every other has compelling historical precedent. It’s precisely what Abraham Lincoln did when he briefly overrode the habeas corpus law in 1861 to save the Union, later saying to Congress, “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?”

That has been articulated in a bit more detail.

But there is also one paper that purports to detail [more] precisely which actions can be deemed forbidden, by introducing a "substantial doubt" test:

This Note argues that the Public Debt Clause is violated when government actions create substantial doubt about the validity of the public debt, a standard that encompasses government actions that fall short of defaulting on or directly repudiating the public debt. The Note proposes a test to determine when substantial doubt is created. This substantial doubt test analyzes the political and economic environment at the time of the government’s actions and the subjective apprehension exhibited by debt holders. Applying this test, this Note concludes that Congress’s actions during the 1995–96 and 2011 debt-limit debates violated the Public Debt Clause, though Congress’s conduct during the debate over the debt limit in 2002 did not. And under a departmentalist understanding of executive power, a conclusion of this nature would be the basis for the president to ignore the debt limit when congressional actions create unconstitutional doubt about the validity of the public debt.

Interestingly, that paper quotes such interpretations before there was even a [single] debt ceiling as such (introduced in 1917):

In his 1901 Constitutional History of the United States, Professor Francis Newton Thorpe notes the breadth with which the Public Debt Clause was interpreted during the ratification process:

The national debt . . . was held chiefly at the North, and its repudiation, or diminution in value, or any distrust of its obligation, would affect most disastrously the lives and fortunes of the Northern people and would injure our national credit abroad. Its validity was essential to our prosperity, however great the burden of payment might prove to be.

Professor Thorpe reports that “validity”—the aspect of the debt that “shall not be questioned”—was equated with “diminution of value” or “any distrust” of the government’s obligations.

Also intersting, in Perry v. United States (1935), SCOUTS [of then] hinted it might have perceived debts other than Tresuries as included in that clause, and broadly speaking concerns regarding its integrity:

“Nor can we perceive any reason for not considering the expression ‘the validity of the public debt’ as embracing whatever concerns the integrity of the public obligations.”

(Perry however lost the case in a 5-4 decision. He was arguing that the government debasing the gold dollar was also a violation of the 14th Amendment, but the Court narrowly held otherwise in that specific regard, because the debt was denominated in dollars, essentially.)

On might argue that there is a little historical basis for introducing a test like that, because e.g. events in 1979 did lead to a short-term technical default, in the view of some, despite the official denials (by calling it a "logjam").

Then, as now, Congress had been playing a game of chicken with the debt limit, raising it to $830 billion [...] only after Treasury Secretary W. Michael Blumenthal warned that the country was hours away from the first default in its history.

That last-minute approval, combined with a flood of investor demand for Treasury bills and a series of technical glitches in processing the backlog of paperwork, resulted in thousands of late payments to holders of Treasury bills that were maturing that April and May.

“You hear lot of people say, ‘The government never defaulted.’ The truth is, yeah, they did . . . It might have been small, it might have been inadvertent, but it happened,” said Terry Zivney, a finance professor at Ball State University who co-authored a paper on the episode entitled “The Day the United States Defaulted on Treasury Bills.”

All things considered, the incident amounted to a minor blip. The Treasury had missed payments on about $120 million worth of bills, a tiny amount even then, given the global investment in U.S. debt. Investors, some of whom joined a class-action suit against the government to recover damages, eventually were paid in full with back interest. T-bills, as they are known, continued to be considered a safe investment. Treasury officials both then and now argued that the event was not even a default, but merely a delay caused by the internal logjam.

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    Default in the sense of not strictly meeting all of the terms of the original agreement as agreed. Every single investor was quickly paid, along with any additional interest for any delay, so, no, it's not at all what default means in its general JFC-this-paper-is-worthless/Argentinian sense.
    – lly
    Commented May 10, 2023 at 8:03
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    "Does Section 4, read properly, prohibit anything beyond putting the federal government into default? If so, which actions does it forbid?" Surely the obvious reading is that it forbids simply legislating away debts (e.g. Congress passing a law that says the Treasury does not have to repay some bonds). The question is whether legislation barring the government from borrowing more money to pay other debts counts as doing that.
    – Ben
    Commented May 11, 2023 at 2:24
  • @Ben Was the debt authorized by law? Seems so. And the exceptions to this rule seem to confirm your (and my) reading. w/ regard to the "least unconstitutional/illegal" discussion, I'd like to know what is in opposition to the 14th amendment around this, the debt ceiling? I'm pretty sure a law cannot overrule the constitution.
    – JimmyJames
    Commented May 11, 2023 at 18:58
  • I also don't follow the habeas corpus discussion. Article One, Section 9, clause 2 states "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." [emphasis mine] I think the civil war qualifies as a 'rebellion'. Not sure how the author got from that to a precedent about a law overruling the constitution.
    – JimmyJames
    Commented May 11, 2023 at 19:32
  • @JimmyJames Early in the war Lincoln suspend habeas corpus. A federal circuit court ruled against him, saying only Congress could suspend the writ. Lincoln largely ignored it. When Congress reconvened, he specifically cited the clause you quote for why he could do it, and Congress more or less retroactively approved the suspension and passed a law to enable him on the matter going forward. But ultimately, your quote is noticeably lacking in describing how a permissible suspension is implemented. The court basically said Congress had to do it, as that's how most everything works. Commented May 15, 2023 at 20:39

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