Biden weighs invoking 14th Amendment to avoid default; McConnell warns against it

WASHINGTON − President Joe Biden said he has considered invoking the 14th Amendment to work around the debt ceiling and avoid a government default without action from Congress but expressed concern about inviting litigation that could block the risky strategy.

"I have been considering the 14th Amendment," Biden told reporters Tuesday after a meeting with top congressional leaders from both parties failed to produce a breakthrough in the debt-ceiling standoff.

Biden added: "The problem is it would have to be litigated. And in the meantime, without an extension, it would still end up in the same place."

Why is the 14th Amendment under discussion?

• Some constitutional experts argue the debt ceiling - which sets a cap on the amount the U.S. can borrow - violates the 14th Amendment, which says in Section 4 the "validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.”

• Rather than seeking congressional approval to raise the debt limit, according to the theory, the Biden administration could challenge the legality of the debt limit by having the Treasury continue to issue new debt to fulfill its financial obligations.

• Biden pointed to the opinion of Laurence Tribe, professor emeritus at Harvard Law School and constitutional law scholar, who came around to the 14th Amendment theory after dismissing it in 2011 when President Barack Obama faced the risk of default.

• Tribe, in a New York Times op-ed Sunday, wrote "the question isn't" whether the president has the authority to "tear up" the federal debt limit statute. "The right question is whether Congress − after passing the spending bills that created these debts in the first place − can invoke an arbitrary dollar limit to force the president and his administration to do its bidding." Tribe argues the answer is no.

McConnell warns Biden against 'unconstitutionally acting' without Congress

Senate Majority Leader McConnell warned Biden against pursuing the 14th Amendment strategy in remarks Wednesday on the Senate floor.

"President Biden's refusal to compromise is really not an option when you have a divided government," McConnell said. "Unconstitutionally acting without Congress is also not an option."

An Oval Office meeting between Biden, House Speaker Kevin McCarthy, Senate Majority Chuck Schumer, Democratic Leader Hakeem Jeffries and McConnell failed to bridge differences in debt-ceiling talks.

The U.S. faces a June 1 deadline for a potential default when the government is expected to run out of money to pay its bills. But Republicans remain committed to spending cuts as part of raising the debt ceiling while Biden and Democrats argue the debt ceiling must be raised without conditions.

Biden might challenge debt ceiling after impasse

Biden wouldn't rule out pursuing a short-term extension to the debt ceiling to get past the June 1 deadline but McCarthy said he's opposed to that idea. Nor did the president rule out skipping the G7 Summit planned in Japan later this month if a deal isn't reached.

"I'm not ruling anything out," Biden said.

Even if Biden doesn't challenge the constitutionality of the debt ceiling based on the 14th Amendment during the current impasse, the issue might not be over.

Biden said he's thinking about looking "months down the road" to see what the courts say about challenging the debt ceiling via the 14th Amendment. "Whether or not it does work," he said.

Reach Joey Garrison on Twitter @joeygarrison.

This article originally appeared on USA TODAY: Biden considers 14th Amendment to escape debt ceiling crisis