The heretofore fringe idea that Section 4 of the 14th Amendment empowers the president to keep borrowing and spending as usual even if the debt limit isn't extended is getting a respectful hearing.
Back in January, the United States reached the current debt limit of $31.4 trillion, which — surprise, surprise — wasn't nearly enough. The Treasury Department has been using "extraordinary measures" to this point to avoid hitting the wall but will exhaust its running room around the beginning of June.
The looming deadline has concentrated the minds of the White House and its allies — not on how to cut a deal, but how to find a fig leaf of legitimacy for President Joe Biden to engage in his most flagrant abuse of his authority to date. He'd simply ignore the debt limit as a supposedly unconstitutional infringement on his obligation to honor our debts. (On Sunday, Biden said he believes he has the authority to invoke the 14th Amendment to address the debt ceiling crisis and is looking into it but that he remains wary of protracted legal challenges that could lead to default anyway.)
"Is the Debt Limit Constitutional?" read a recent New York Times headline. "Biden Aides Are Debating It."
A sign of the shifting ground is that left-wing legal scholar Laurence Tribe wrote an op-ed in The Times during the last big debt-limit showdown in 2011 saying that the 14th Amendment couldn't be used to ignore the debt limit ("A Ceiling We Can't Wish Away") and now has written another op-ed in The Times saying he's changed his mind.
Desperate times call for desperately motivated reasoning.
In an interview on "This Week with George Stephanopoulos," Treasury Secretary Janet Yellen repeatedly refused to say the 14th Amendment is off the table; at the same time, she said invoking it would cause a "constitutional crisis."
She's right about that, at least.
The fact that pretty much everyone in authority dismissed the idea until now is a dead giveaway that the 14th Amendment option is a ridiculous contrivance.
Although the 14th Amendment as escape hatch was bandied about during the debt limit confrontation in 2011, the Obama administration ultimately dismissed it. "Like every previous secretary of the Treasury who has confronted the question," the Treasury Department general counsel wrote of his boss, Timothy Geithner, at the time, "Secretary Geithner has always viewed the debt limit as a binding legal constraint that can only be raised by Congress."
Indeed, the debt limit is not some innovation dreamed up by the House Freedom Caucus. It was first passed in 1917 as part of the Second Liberty Bond Act. This was hardly a congressional power grab. Before the advent of the debt limit, as Georgetown law professor Anita S. Krishnakumar points out, Congress authorized each bond issue, generally to fight wars and bolster the economy during recessions. The debt limit is the logical extension of Congress' power to tax and spend.
The 14th Amendment does say that "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."
It's absurd to pretend that this provision somehow authorizes the president to arrogate to himself the fiscal powers of Congress if the debt limit isn't raised or — more to the point — isn't raised in a manner to his liking.
The House isn't saying that the debt ceiling shouldn't be extended, only that it should happen with accompanying spending reductions that make it more likely that our debts will be honored in the future.
Even if the debt limit is breached, it doesn't mean our debts will be written off. Under a 2011 Treasury contingency plan, other payments would have been delayed. This makes the 14th Amendment argument even more attenuated.
Rich Lowry is editor-in-chief of National Review.