Section 4 reads, in part, “The validity of the public debt of the United States, authorized by law… shall not be questioned.” And Section 5 reads, “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
Ratified in 1868, at the time, this section was to guarantee the bonds that had been issued by the federal government to pay for the Civil War — “including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion” — and simultaneously to repudiate the debts of the Confederacy.
The second part of the section wiped away the Confederacy’s debt: “neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.”
These provisions must be read consistently, so, the debts incurred by the federal government, authorized under law by Congress, “shall not be questioned” and the debts incurred by the Confederacy “shall be illegal and void” and “neither the United States nor any State shall assume or pay any debt or obligation” incurred by the Confederacy. Therefore, the debt obligations incurred by the federal government, authorized under law, must be paid, and those incurred by the Confederacy must never be paid.
So, right off the bat, one glaring issue for President Biden is the $31.4 trillion debt ceiling is currently established under law that Congress passed and the President signed into law. It cannot go higher without Congress.
Here, Biden is attempting to remove Congress’ clearly delineated role and power to “enforce, by appropriate legislation” the provision of Section 4 that reads “The validity of the public debt of the United States, authorized by law… shall not be questioned.”
Meaning, Congress could pass a law allowing the President or the Treasury to increase the debt limit. Or it could pass a law saying there is no debt limit. But instead, it has currently passed a law that will not allow the federal government to borrow more than $31.4 trillion, give or take. That was done most recently in S.J. Res. 33 in Dec. 2021, a short law that read “Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, <<NOTE: 31 USC 3101 note.>> That the limitation under section 3101(b) of title 31, United States Code, as most recently increased by Public Law 117-50 (31 U.S.C. 3101 note), is increased by $2,500,000,000,000.”
That took it from $28.9 trillion to $31.4 trillion. Not $31.5 trillion or $31.6 trillion, and not $50 trillion or $100 trillion. Here, Biden is suggesting that he can just keep increasing the debt ceiling for all time, absent any authority from Congress to do so.
This is both dangerous and unprecedented, and would be a genuine constitutional but also a financial crisis, as a rogue Treasury Department started issuing radioactive treasuries that were never authorized by Congress, which might be struck down by federal courts given the clear wording of both the 14th Amendment and S.J. Res. 33.
Biden alluded to the possibility of a court appeal in his Hiroshima press conference, stating, “The question is: Could it be done and invoked in time that it could not — would not be appealed and, as a consequence, pass the date in question and still default on the debt. That’s a question that I think is unresolved.”
That part could be Biden making an excuse for why he would not be invoking the Fourteenth Amendment, saying there was no time and that it could just be uprooted by a federal court appeal, in an attempt to placate his political base that just wants him to act arbitrarily.
But he cannot act arbitrarily. Section 5 of the Fourteenth Amendment clearly states “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” Not the President, not the Supreme Court, but Congress has the power to enforce the provision of Section 4 that states “The validity of the public debt of the United States, authorized by law… shall not be questioned.”
If anything, an honest reading of the Fourteenth Amendment means the federal government must pay the debt authorized by law above all other obligations. So, creditors get paid first out of existing revenue, no ifs, ands, or buts. You have to pay the debt. The Fourteenth Amendment doesn’t mean what you hope it means, Mr. President.