by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Joe Biden is musing aloud about violating his oath of office and seizing powers not granted him by the Constitution in order to avoid negotiating with the House of Representatives. This is a shameful way for the president of a constitutional republic to act.
The so-called 14th Amendment option — to have the president issue debt not approved by Congress — doesn’t actually exist. Until 2023, nobody in the executive branch has ever pretended that it does. “I have talked to my lawyers,” Barack Obama said in 2011, and “they are not persuaded that that is a winning argument.” Left-leaning legal scholars such as Laurence Tribe once agreed. Nothing has changed but the intensity of partisanship.
The Constitution is quite explicit: Congress, and only Congress, has the power “to borrow Money on the credit of the United States.” Congress, and only Congress, has the power to raise revenue, and all bills to do so must start in the House. The Framers were quite open in designing this system to give Congress the power of the purse so that it could bring the executive to heel.
Section Four of the 14th Amendment, designed to ensure the repayment of Civil War debts even over Southern objections, barred the federal government from repudiating its existing debts. But it did not, explicitly or implicitly, change the allocation of power to issue new debt. At the time, new issuances of debt were approved one at a time by Congress. The so-called debt ceiling instituted during the World War I is not a limit but a congressional grant of power to the Treasury to issue a certain amount of new debt, with discretion over time and terms. But once that new debt is exhausted, there is simply no authority in the executive branch to borrow more.