President Joe Biden gave the first indication on Tuesday that he would consider unilateral action on the debt ceiling, following his meeting with congressional leadership. Biden and the “four corners”—House Speaker Kevin McCarthy, Senate Majority Leader Chuck Schumer, and Minority Leaders Hakeem Jeffries and Mitch McConnell—agreed to nothing besides having a second meeting on Friday. In the meantime, their staff will continue to talk.
“I didn’t see any new movement,” McCarthy told reporters following the meeting. Which means McCarthy is still ready and willing to send the nation into default. He and McConnell are holding fast to their hostage demands, determined to wreck the economy either by wrecking the nation’s credit rating or inflicting draconian spending cuts that would result in a recession.
Biden, however, did move a little. He spoke to the press after the meeting and dropped a small bombshell. “I have been considering the 14th Amendment,” he told reporters. That’s shorthand for challenging the constitutionality of the law that puts Congress in charge of paying the bills that they incur. It’s news, as thus far the White House has been saying they’re ruling it out. There’s a big caveat here, Biden said: “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.”
That litigation has already started in a Massachusetts federal court. The National Association of Government Employees is suing Biden and Treasury Secretary Janet Yellen, arguing that the debt ceiling statute is unconstitutional. Their argument is pretty clean. The 14th Amendment says the president is responsible for making sure the nation does not default. The Constitution also lays out clear separation of powers, and gives Congress the job of deciding what gets funded and what doesn’t. The debt limit statute, however, directs the president to decide which programs authorized by Congress should continue to be funded and which programs should not. Congress making those decisions is a violation of the separation of powers.