Why the 14th Amendment Option Is Not on the Table

Garrett Epps argues that if Congress refuses to increase the debt ceiling, the President will have little choice but to invoke Section 4 of the 14th Amendment and act unilaterally to pay the federal government’s fiscal obligations.  The White House, however, has a different view.  As in 2011, the Obama Administration has dismissed this option.  Bloomberg reports that White House advisers believe such a move would be impractical and, perhaps more importantly, that there is no legal authority for such a move.  According to various reports, the Office of Legal Counsel has analysed the question, though has also refused to release the relevant memoranda.

As noted in prior posts on the debt ceiling, the argument that the President could unilaterally breach the debt ceiling is one of those constitutional arguments that may seem superficially appealing, but that falls apart under scrutiny.  As Laurence Tribe has pointed out, such a move would entail the usurpation of a power expressly delegated to the legislature and cause the very evil — calling the nation’s debts into question — that Section 4 of the 14th Amendment was drafted to prevent. For this reason, Tribe (and others) have argued, should the debt limit be reached, the least problematic option for the President is to prioritize debt payments over other spending.