The Constitution gives Congress the power to raise taxes, spend the revenue through appropriations, and “borrow money on the credit of the United States” to pay the government’s debts.

To maintain control over its borrowing, Congress has also enacted a debt ceiling, now set at about $31.4 trillion.

For a long time, raising that debt ceiling was bipartisan, perfunctory and uncontroversial. But as partisanship in Washington grew, Republicans in particular have used the debt ceiling under Democratic presidents to push for budget cuts or other priorities. (Republicans did not hesitate to lift the debt ceiling under President Trump.)

The nation narrowly avoided bankruptcy under President Obama in 2011 and faces the same crisis today.

In this confrontation, almost everyone assumed there was only one option: the two sides had to agree on a deal that would lift the current debt ceiling in order to pay this year’s bills.

Otherwise, the government could default on its debts, which could lead to financial market chaos and pain for millions of Americans.

But in recent weeks, a once obscure idea has emerged.

Some legal scholars point to a clause in the 14th Amendment stating that “the validity of the national debt permitted by law … shall not be called into question”.

According to this untested theory, therefore, the president could be seen as having a constitutional duty to circumvent Congress and pave the way for more debt to be issued.

Garrett Epps, a 14th Amendment legal historian at the University of Oregon, has been writing about this idea for 12 years. He feels that his view “once dismissed as a fringe theory has now become mainstream”.

“If the debt ceiling is not raised, the national debt will not be reduced by one penny. It will default the existing debt for the first time,” he wrote. “That, in turn, will decimate the credit rating of the U.S. government, strain the domestic economy and drive up interest rates globally as investors demand guarantees against future defaults.”

Harvard law professor Laurence Tribe said he had changed his mind on the issue and now believes the Constitution can require the president to “choose the lesser of two evils” and bypass the debt ceiling.

“In practice, that means: Mr. Biden must tell Congress in no uncertain terms and as soon as possible, before it is too late to avert a financial crisis, that the United States will pay all its bills when they owe. , even if the Treasury Department has to borrow more than Congress has said it can,” he wrote in the New York Times.

Cornell Law Professor Michael Dorf goes even further. He argues that the debt ceiling law should be considered unconstitutional because Congress has put the president in an impossible situation: Congress has set taxes at a certain level and spending at a higher level, and now threatens to push the national debt into debt. default by preventing money from being borrowed. up the difference.

Whether this theory is constitutional is up for debate.

Section 4 of the 14th Amendment was passed to ensure that a post-Civil War Congress with a powerful faction of ex-Confederates could not repudiate the bonds and other debts the Union took on to take down those who had engaged

in

“insurrection or rebellion.”

But the clause is not limited to that era. In 1935, Chief Justice Charles Evans Hughes cited the 14th Amendment in a decision on government bonds and legal tender.

“We consider it an affirmation of a fundamental principle that also applies to the Treasury bonds in question, and to others duly approved by Congress,” Hughes wrote. “We also cannot see any reason not to view the expression of the validity of public debt as an embrace of all things public obligation integrity.”

Most lawyers and government officials, including prominent Democrats, were hesitant to invoke the 14th Amendment as a way around the debt ceiling, though some wouldn’t rule it out as a last resort.

Last week, treasury

Secret. Secretary

Janet

L

Yellen called it “legally questionable”.

It would require the president to effectively violate one law in order to fulfill another constitutional duty. And it could cause problems in the bond market if the Treasury Department were to issue new bonds

That

not endorsed or approved by Congress.

The Ministry of Justice advised

President

Obama did not have the authority to circumvent the debt ceiling years ago. It is not clear whether the government’s lawyers have weighed in on the current controversy.

Ultimately, the question would likely end up in the Supreme Court, and there is reason to fear that the conservative Supreme Court would rule that the president had overstepped his authority.

Stanford Law Professor Michael McConnell said the Constitution couldn’t be more clear that the powers to tax, spend and lend were given to Congress, not the president.

“The idea that the 14th Amendment unilaterally gives the president the power to borrow is dangerous nonsense,” he said.

But

President

Biden said last week that he has “considered the 14th Amendment,” citing Tribe’s changed view on the issue.

Speaking to reporters after meeting with Republican leaders, he said he made it clear that “default

in it

no option. I repeated that over and over. America is not a dead end nation. We pay

from our

bills. And avoiding default is a basic duty of the US Congress.”

He said he remained wary of invoking the 14th Amendment as a solution.

“The problem is it would have to be litigated,” and the courts could suspend his actions. If so, he could “still end up in the same place.”