House Speaker Kevin McCarthy is openly threatening to force a default on our nation’s debts unless President Biden agrees to a so far unspecified list of spending cuts to federal programs. But the president has a formidable constitutional argument against this irresponsible display of brinkmanship. It is disappointing that he has so far declined, at least in public, to use this argument to pressure Congress to raise the federal debt ceiling.
Section 4 of the 14th Amendment to the Constitution, adopted in 1868, squarely prohibits Speaker McCarthy’s game of chicken, and the president ought to call him on it. Section 4 provides that “the validity of the public debt of the United States, authorized by law…shall not be questioned.” McCarthy’s threat to withdraw the federal government’s authority to borrow money to meet its obligations is precisely the kind of “questioning” that Section 4 was designed to rule out.
The 14th Amendment’s central contributions to the rule of law under our Constitution were its revolutionary guarantee of equal protection of the laws and its prohibition against state deprivations of life and liberty without due process. The Reconstruction Congress responsible for its adoption included Section 4 in response to a threat that is strikingly similar (albeit with the political parties reversed) to the one presented by Speaker McCarthy today. The Union had borrowed heavily, by issuing federal bonds, to finance the Civil War and pensions for the army veterans who fought it. But the Democratic party, controlled largely by former Confederate slaveholders, announced that it would repudiate these bond obligations if it secured control of Congress in the 1868 election. Section 4 was adopted by Congress, and ratified by the states, to prevent the most reactionary political forces of the time from engineering a purely partisan default.
Speaker McCarthy’s threatened refusal to authorize an increase in the federal government’s debt ceiling is as blatant a violation of Section 4 as was the bond default urged by the former Confederates after the Civil War. The obligations now owed by our government are payable either to holders of federal bonds, or to citizens under the authority of programs like Social Security and Medicare. All of these obligations have already been incurred by Congress through the exercise of its constitutional borrowing and spending powers and are thus fully authorized by law.
President Biden is constitutionally required to take care that the laws are faithfully executed. He is, therefore, also bound by Section 4 to honor our debts even if Congress would prefer to ignore or avoid them. The president should immediately announce that he will continue to meet the obligations owed by our government regardless of whether Congress raises or suspends the debit ceiling. The president’s public pledge to keep faith with our creditors would at least modestly ease the growing nervousness of bond holders (and senior citizens) about whether the United States Treasury still merits their trust. It might also (admittedly a long shot) persuade Speaker McCarthy to drop his blackmail demands on the ground that they are as futile as they are illegal.
Obviously, disregarding the debt ceiling is far from a foolproof strategy for the president. His authority to borrow would no doubt be challenged in court. Though Republican members of Congress would not likely have standing to sue him, holders of Treasury bonds could reasonably ask for a judicial clarification of the confusion that would result from a standoff between the president and Congress. And, of course, it is possible that our highly partisan Supreme Court majority would savor the opportunity to hand a Democratic president a political defeat by holding that only Congress may authorize the United States to borrow, even to pay debts it has already taken on. Such a holding, though disastrous for the country and for the rule of law, would at least make clear who is responsible for shirking our constitutional obligation to honor our debts.
Our Constitution supports democratic government only when political actors use it to serve democratic values. President Biden’s best opportunity now to protect the country from a catastrophic debt default is to enforce the obligations imposed by Section 4 of the 14th Amendment. His failure to do so would amount to colossal political and constitutional malpractice. The president’s choice was aptly anticipated more than half a century ago by the Grateful Dead:
…(Y)ou’ve got to play your hand.
Sometimes the cards ain’t worth a damn,
if you don’t lay ‘em down.
Bruce Miller is a Professor Emeritus at Western New England University Law School. He lives in Northampton.
Suggested citation: Bruce Miller, A Debt Default Would Be Unconstitutional. President Biden Should Say So Now., JURIST – Academic Commentary, March 6, 2023, https://www.jurist.org/commentary/2023/03/bruce-miller-debt-default-unconstitutional/.
This article was prepared for publication by Hayley Behal, JURIST Commentary Co-Managing Editor. Please direct any questions or comments to her at commentary@jurist.org
