What does the 14th Amendment have to do with the debt ceiling? Nothing, despite some Senate Democrats’ suggestions otherwise.

The debt limit is the amount of money the government is authorized to borrow in order to meet its existing legal obligations.  The current legal debt limit is $31.4 trillion, and since January 19, 2023 the Department of Treasury has engaged in “extraordinary measures” to extend its ability to fund the government until early June.  With the debt ceiling looming, the United States is mere weeks away from running out of money to pay its bills and Congress is torn between taking out more credit or cutting back spending.  If the struggle feels familiar, it is because it is: the United States has had to increase its debt ceiling 78 times since 1960.  But the history of the debt ceiling is over a century old, and began in 1917 with the Second Liberty Bond Act.

Prior to 1917, Congress did not operate under a debt ceiling. Congress instead authorized specific loans or allowed the Treasury to issue debt instruments through specific legislation.  The Second Liberty Bond Act set a $11.5 billion aggregate debt limit as well as limits on specific debt issues.  In 1939, a general limit of $45 billion was placed on nearly all federal debt, which was about 10 percent above total debt at the time.  Congress also has the option to suspend the debt limit, rather than raise it by a specific amount, and they have done so multiple times throughout American history.

In recent times, the debt ceiling was raised to $31.4 trillion in December 2021, which lasted until January 19, 2023.  It would be dangerous for the United States to default on its obligations, but the major question is whether Congress will include deficit reduction measures in raising the debt ceiling.  In an effort to restore some semblance of fiscal discipline, House Republicans passed the Limit, Save, Grow Act in April that pairs $4.8 trillion of spending cuts and a suspension of the debt limit through April 31, 2024, or until the debt increases by $1.5 trillion, whichever occurs first.  Among other things, the bill would set FY24 caps at the FY22 level, rescind unspent pandemic relief funds, and slow much of the Biden climate agenda. It would also repeal student loan forgiveness, which would wipe out more than $400 billion in debt with that one action alone.

With an ultra slim margin for Republicans in the House and a Democrat majority in the Senate, the negotiations have only just begun, although the timeline is pressing.  Some officials, unwilling to negotiate on policy priorities, have floated the controversial idea of the president using the 14th Amendment to bypass Congress altogether to continue funding the federal government.   The 14th Amendment, adopted in the wake of the Civil War during the Reconstruction era, gave former slaves citizenship and established due process and equal protection as crucial tenets of American democracy.  However, those seeking to bypass debt limit negotiations see Amendment 14, Section 4’s clause, which reads, “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,” as granting the president authority to issue additional debt without Congressional approval.

Simply put, this interpretation is ridiculous given an actual reading of the Amendment and the context in which it passed.  The idea that anyone is questioning the validity of this debt is absurd and not helpful to the conversation.   A default on debt is not a question of whether the debt should have been incurred in the first place.  If a person does not pay their credit card bill, that does not mean the charges on the card were fraudulent and should be null.

More importantly, however, the president does not have the power to issue additional debt — that is a power given to Congress under Article I of the Constitution.  The idea that this 14th Amendment clause, then, would override the power given to Congress by Article I, Section 8 to “pay the debts and provide for the common defense and general welfare of the United States” is an illegitimate expansion of the president’s power.  Those who are floating absurd constitutional interpretations have a right to do so, just like the Senate Democrats calling on President Biden to invoke the 14th Amendment are doing now. However, everyone should remember that others who have similarly offered novel interpretations of constitutional law — particularly those on the right — are still fighting disciplinary proceedings, ethics complaints, and even disbarment over novel Constitutional interpretations.

President Biden should rightly ignore this incorrect interpretation of the law and instead work with Congress to address the debt crisis.  Just like a family who is faced with budget constraints, cutting back on expenditures should be the first thing the country does to address our profligate spending.  The president should provide a meaningful explanation of funding priorities for full transparency to the American people instead of just asking for a blank check.