WASHINGTON — President Joe Biden’s deal with congressional Republicans staved off a federal default crisis for another two years — but also evaporated hopes for now of ending debt ceiling battles once and for all, legal experts and White House allies say.
In the midst of negotiations, Biden said he was tempted to pursue a test case in which federal courts might certify that the Constitution’s 14th Amendment gives the president unilateral authority to override the borrowing cap. Biden said constitutional scholars including Laurence Tribe, a Harvard University professor and occasional adviser, told him the unprecedented executive action could pass constitutional muster.
But by punting that effort until after congressional negotiations wrapped up, several scholars — including Tribe himself — say it’s now much harder for Biden to secure a ruling that would allow him to avert a future fight that threatens to rattle Washington and Wall Street.
“With the crisis having passed, no ‘test case’ would be likely to yield any authoritative adjudication,” Tribe said in an email. “The only solution, in my view, is for Congress to grab this bull by the horns and permanently eliminate the statutory ceiling.”
The White House itself has gone silent on the issue since the deal was reached. White House officials declined to comment when asked directly whether the administration was now or would be pursuing a 14th Amendment ruling with the immediate crisis resolved. Biden himself made no mention of seeking a ruling in a prime-time address he gave after resolving this year’s fight.
And White House press secretary Karine Jean-Pierre said earlier this month that Biden believed the debt ceiling “is something for Congress to kind of deal with.”
The notion of using the 14th Amendment to avoid a debt ceiling breach has been hotly debated in recent years. A provision of the amendment says the validity of U.S. public debts “shall not be questioned.” But whether that allows a president to keep accruing debt has not been adjudicated by courts.
Biden in May gave his most candid assessment yet of what extraordinary powers a president may have in the event Congress didn’t suspend or raise the ceiling.
“I’ll be very blunt with you: When we get by this, I’m thinking about taking a look at, months down the road, to see whether, what the court would say,” Biden said. “I think that only solves your problem if, once the court has ruled that it does apply for future endeavors.”
The comments marked a potential shift. During the Obama administration, Justice Department lawyers examined the issue and ultimately concluded the 14th Amendment wasn’t a viable pathway for averting a debt ceiling breach — though that legal opinion has never been released publicly.
The current deal, which saw Democrats agree to moderate spending cuts and welfare reforms in exchange for suspending the ceiling until 2025, saps the urgency that may have been needed for a firm ruling.
“I don’t even know how the president could even get a test case at this point,” said Michael W. McConnell, professor at Stanford Law School.
Eric Posner, a professor at the University of Chicago Law School, agreed, saying he could not think of a way for the White House to seek a definitive ruling that would allow a president to bypass Congress in the future.
Federal courts are limited to adjudicating actual cases, Tribe said, but reiterated his belief that if judges were faced with a case on whether the 14th Amendment could be used for extra borrowing to avoid a default, they would treat the amendment as binding.
“Courts would probably avoid actually reaching the merits and, in any event, I don’t think a judicial solution would avoid the economic turmoil that the uncertainty itself would cause,” he cautioned.
The recent standoff fueled questions over what extreme or untested unilateral powers the administration would use in the event of a potential breach. Others include prioritizing payments or even minting a trillion-dollar coin — an idea Biden brushed aside.
McConnell said he thinks the 14th Amendment option is a baseless legal theory and that he doubts a ruling would bring clarity.
“I can’t envision how it would work. And even if we were still up against the crisis — if the debt limit had not been increased and we still were facing the possibility of an imminent default — even then I don’t quite see how the 14th Amendment issue gets to court,” he said.
Tribe has called for Congress to kill the borrowing cap, but McConnell says it should stay.
“It would be a real mistake to get rid of it. I believe Congress has and should have the power of the purse,” McConnell said. “I think on the whole the debt limit serves a useful function.”
