An untested legal theory allowing President Joe Biden to unilaterally raise the debt ceiling is gaining traction on Capitol Hill, as Congress and the White House face a looming deadline for avoiding a catastrophic default.
With Biden and House Republicans locked in a standoff over raising the nation’s borrowing limit, a growing number of senators from both parties are discussing the possibility of Joe Biden invoking a clause in the 14th Amendment that some legal scholars say allows the president to raise the debt ceiling without congressional approval.
“I think if I were president, I would be tempted to do that because I would just be like, ‘Listen, I’m not going to let us default—so end of story,’” GOP Senator Josh Hawley of Missouri, who supports the efforts of House Republicans, told Newsweek. “But, I’m not necessarily giving him that advice.”
In interviews with Senate Democrats and Republicans—the House is out of session this week—lawmakers voiced cautious support for the idea, though many said they’d prefer that Congress reach a deal on its own.
“I think it is a viable argument,” Democratic Senator Richard Blumenthal of Connecticut, a member of the Judiciary Committee and a former attorney general, said of Biden invoking the 14th Amendment to raise the debt ceiling.
“My preference is bipartisan action, but I think it is a matter of existential economic survival” to avoid a default, Blumenthal added.
The pressure to avoid a default increased this week following Treasury Secretary Janet Yellin’s warning Monday that the government could run out of money to pay its bills as early as June 1 if the borrowing cap isn’t lifted.
Yellin’s warning came after House Republicans passed a bill on a party-line vote last week that would raise the debt ceiling but also slash federal spending. Biden has threatened to veto legislation that ties raising the debt ceiling with funding cuts, while arguing that Republicans should join Democrats in passing a so-called “clean” bill to raise the borrowing cap.
But with both sides dug in, some lawmakers and legal experts have scrambled to find other solutions if Republicans and the White House can’t strike a deal—leading to the growing chorus of support for invoking the Public Debt Clause of the 14th Amendment.
The clause, which reads that the “validity” of the public debt “shall not be questioned,” was instituted following the Civil War, historians say, to ensure that formerly Confederate states would not reject the federal debt and take on the Confederacy’s debt.
The theory is untested. Congress has approved additional funding to pay America’s incurred debt, increasing the borrowing limit dozens of times in recent decades.
But some legal scholars argue that the broad language of the Public Debt Clause gives the president latitude to lift the debt through executive action, without approval from the Legislative Branch.
The White House, for its part, has not signaled publicly whether Biden would consider acting on his own if House Republicans refuse to pass a clean debt ceiling increase without any spending cuts. White House press secretary Karine Jean-Pierre has deflected questions in recent days about the possibility of Biden taking executive action to lift or suspend the debt limit.
The White House did not respond to a request for comment from Newsweek.
“We’re not going to entertain scenarios where Congress compromises the full faith and credit of the United States,” Jean-Pierre said Wednesday, when asked if the White House would consider invoking the 14th Amendment.
“The president has been very clear,” she added. “Congress must act.”
Democratic Senator Sheldon Whitehouse of Rhode Island, a member of the Judiciary Committee and a former attorney general, said he is not aware of discussions over the White House acting under the 14th Amendment, and said such a move would be “entirely their call.” He did not oppose the administration taking action under the rule.
“Going off the debt limit cliff is something earnestly to be avoided,” he told Newsweek, adding that he would “not legally rule it out” whether the White House has the power to lift the debt ceiling itself.
“If [acting under the 14th Amendment] ends and settles the question, I think markets will breathe a huge sigh of relief that this danger is now over,” he added. “If the MAGA folks decide they’re going to litigate it, that creates a lot of risk and uncertainty in markets, and that decision would do a lot of damage.”
Moody’s Analytics chief economist Mark Zandi warned Congress that a debt limit default would be a “catastrophic blow to the already fragile economy.” In a report on the issue released by Moody’s, the financial intelligence firm predicted that the U.S. would lose close to 1 million jobs and enter a “mild recession.” Taking these predictions into account, Democrats have stressed the need for a clean debt limit increase and said they would discuss cutting the deficit once the risk has been avoided.
The growing calls from some Democrats for Biden to act without Congress come as the White House and congressional leaders prepare for a critical face-to-face meeting on the issue next week.
Earlier this week Biden called for a May 9 meeting at the White House with House Speaker Kevin McCarthy, House Minority Leader Hakeem Jeffries of New York, Senate Majority Leader Chuck Schumer of New York, and Senate Minority Leader Mitch McConnell of Kentucky.
The sit-down will be the first substantive in-person meeting on the issue involving Biden and McCarthy after months of public sparring between Congressional Republicans and the White House.
Ahead of next week’s meeting, Democrats warned of the consequences of default.
“The Republicans will inflict a terrible cost on our country if they do not lift the debt limit,” Massachusetts Senator Elizabeth Warren, a Democrat, told Newsweek. “We should not be talking about Plan B to lift the debt limit outside the ordinary course, because it signals to the world that we’re having serious problems here in America.”
Warren declined to weigh in whether she considered the 14th Amendment proposal a viable legal argument, stressing the potential international implications should the White House be forced to go down that route.
“The question itself is costly,” she said, “because it’s a reminder that what the Republicans are proposing is terrible, terrible for our economy and terrible for our standing in the world.”