Does 14th Amendment permit Biden to bypass debt ceiling? Looming crisis forces close look.

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

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

For a long time, raising that debt ceiling was bipartisan, perfunctory and noncontroversial. But amid deepening partisanship in Washington, Republicans in particular have used the debt ceiling under Democratic presidents to seek budget cuts or other priorities. (Republicans did not hesitate to lift the debt ceiling under former President Donald Trump.)

The nation narrowly averted a default under former President Barack Obama in 2011 and is facing that same crisis today.

When faced with this clash, most everyone had assumed there was only option: The two sides must agree on a deal that would lift the current debt ceiling to pay this year's bills.

Otherwise, the government would default on its debts, potentially triggering chaos in the financial markets and pain for millions of Americans.

But in recent weeks, a once-obscure idea has come to the forefront.

Some legal scholars point to a clause in the 14th Amendment which says the “validity of the public debt, authorized by law ... shall not be questioned.”

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

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

“Failure to raise the debt ceiling will not reduce the national debt by one penny. It will force a default on existing debt, the first ever,” he wrote. “That will, in turn, decimate the credit of the U.S. government, tank the domestic economy, boost interest rates worldwide as investors demand guarantees against future defaults.”

Harvard Law Professor Laurence Tribe said he had changed his view on the issue and now believes the Constitution may require the president to “pick the lesser of two evils” and bypass the debt ceiling.

Section 4 of the 14th Amendment was adopted to ensure that a post-Civil War Congress with a powerful faction of ex-Confederates could not repudiate the bonds and other debts taken out by the Union to put down those who had engaged in “insurrection or rebellion.”

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

Most lawyers and government officials, including prominent Democrats, have been wary of invoking the 14th Amendment as a way to get around the debt ceiling, though some don't rule it out as a last resort.