Former Biden adviser Tribe: Just use the 14th Amendment now
The longtime constitutional scholar said Biden’s fear that it will be caught in the courts was misplaced.
President Joe Biden made waves Tuesday when he acknowledged he was considering using the 14th Amendment to end the debt standoff — before saying he feared it would get caught up in courts.
On Wednesday, the politically active constitutional scholar who warmed Biden to the idea called the president’s concerns misplaced.
“I don’t think there is any litigation to fear,” said Harvard professor Laurence Tribe, adding that he “hopes” Biden realizes a court challenge is not something to worry about.
Tribe’s response to Biden represents his latest effort to try and persuade the president to utilize novel legal arguments as a way through the increasingly thorny debt ceiling standoff. Tribe’s push for the 14th Amendment first got on Biden’s radar vis-a-vis a May 7 New York Times op ed, in which he said the debt ceiling must be ignored in order for the president to execute other laws enacted by Congress.
Biden expressed openness to the argument at a press conference on Tuesday but largely rejected the idea of pursuing the option in the context of the current standoff. He noted that because the use of the 14th Amendment would be challenged in court, it would spark similar questions around default and, potentially, market chaos. He added that he was looking at the idea after the current standoff is resolved.
“When we get by this, I’m thinking about taking a look at [it],” Biden said.
Tribe, in an interview, said that House Republicans — who have hinted they would challenge the president’s use of the 14th Amendment — can’t sue the president for not violating the Constitution. He anticipated the Supreme Court would reject such a case.
“Even bending their standing doctrine, I don’t know how they or how anyone could find somebody with standing to sue the president and the secretary of the Treasury for spending the money that Congress has said they’re supposed to spend,” Tribe said. “What would a court tell them not to spend the money on?”
Biden on Tuesday called Tribe “a man I have enormous respect for” and someone who advised him “for a long time.” Tribe declined to say whether he is speaking with the White House about the 14th Amendment concept.
The basis of Tribe’s argument is that Congress can’t issue laws requiring the executive to spend money and create debt and then also demand a separate dollar limit on that spending.
The idea of using the 14th Amendment — which says the nation’s debts “shall not be questioned” — to continue making payments on spending approved by Congress has garnered increased interest as the nation tips closer to default. That could intensify if and when the current standoff ends, as White House officials have made clear that Biden is serious about exploring it as a means to prevent another spin around the nation’s fiscal drain in the future.
“The debt limit does not limit debt. It has no positive function whatsoever. It’s simply a formula for periodic crises,” Tribe said.
Democrats on Capitol Hill are warm to the idea but have been skeptical of embracing the escape hatch out of similar concern about a certain court challenge.
“I personally feel that we should test it,” said Sen. Dick Durbin (D-Ill.), the Democratic whip. But, “we can’t afford to go into a last minute court battle with the June 1 deadline.”
Rep. Jamie Raskin (D-Md.), an emeritus constitutional law professor at American University, said if the standoff doesn’t end, “there is a pretty clear constitutional command” to pay debts. He also acknowledged there is “virtually no precedent” under the 14th Amendment. But the president could be “in a position where he’s going to be forced to choose between either violating the Constitution and violating the laws of the country which require him to pay the bondholders and pay the Social Security recipients.”
However, Republicans — who are looking to use the debt limit to extract cost cutting — are opposed to the idea.
“Unconstitutionally acting without Congress is also not an option,” said Senate Minority Leader Mitch McConnell.
Tribe said he’s unclear how the White House could formally declare it was invoking the 14th Amendment as a means of ensuring the country made its payment, but said it would not be a heavy lift.
“The logistics — is it an executive order, is it a directive in the form of a presidential statement? That, I haven’t worked out, and that I’m confident Stu Delery as the President’s White House counsel will be working rather hard on it if Congress remains recalcitrant and refuses to budge,” he said.