If he were president, Hawley says, he’d be tempted to raise debt ceiling without Congress

As Republicans and Democrats appear at an impasse on raising the debt ceiling, President Joe Biden last week suggested he was open to another option: paying the country’s bills without the help of Congress.

Biden has dismissed some of the other last ditch suggestions that have been thrown around — like minting a trillion-dollar coin — but his staff is looking into whether his administration has the constitutional authority to ignore the debt ceiling and keep paying the country’s bills to avoid an unprecedented default.

“I have been considering the 14th Amendment,” Biden said. “And a man I have enormous respect for, Larry Tribe, who has advised me for a long time, thinks that it would be legitimate. But the problem is that it would have to be litigated. And in the meantime, without an extension, it would still end up in the same place.”

The 14th amendment was passed after the Civil War and was intended to protect civil rights. It contains a provision called the “public debt clause,” which some experts say would allow the president to continue borrowing money to pay for the country’s already allocated spending.

The idea has also caught the interest of Sen. Josh Hawley, a Missouri Republican.

“I think if I were president, I would be tempted to do that,” Hawley said. “Because I would just be like, ‘Listen, I’m not gonna let us default. So end of story. Y’all will do whatever you want to do.’ But I’m not necessarily giving him that advice. It’s against my interest.”

Laurence Tribe, a professor emeritus at Harvard Law School who Biden referenced last week, has argued the president can just ignore the debt limit, saying he would be already forced by Congress to make a difficult choice. Either he breaks the law by ignoring the debt limit and continues to borrow money, or he breaks the law by choosing who gets paid when the country can no longer borrow money, violating spending laws passed by Congress.

But Tribe was concerned to hear that Hawley thought the idea might work.

“The fact that Sen. Hawley is at least potentially on board with the idea that the president would not be bound by the debt ceiling is welcome news, but I wonder about his motives,” Tribe said.

Biden hosted House Speaker Kevin McCarthy, House Minority Leader Hakeem Jeffries, Senate Majority Leader Chuck Schumer and Senate Minority Leader Mitch McConnell at the White House on Tuesday for their second meeting in a week. While leaders emerged optimistic, they still appear far apart on the details.

Democrats insist they want a “clean” debt limit bill, saying it’s the responsibility of Congress to pay for the amount of spending it has already approved. Republicans say they won’t do that.

Last month, House Republicans passed a bill to raise the debt limit that also called for cuts on discretionary spending and would repeal a major climate law last year aimed at curbing the country’s carbon emissions.

The debt limit was first imposed in 1917, during World War I, and has been repeatedly lifted as the federal government’s spending has grown. Tribe is among a group of experts who believes that Congress made the debt ceiling irrelevant in 1974 when it passed the bill that determines the modern budgeting process.

“Ever since 1974, it’s been kind of like the appendix, a kind of useless organ,” Tribe said. “But unlike the appendix it can be swung around and used as a hammer to bang the executive branch and try to force it into submission.”

McCarthy, who leads a narrow majority in the House, is using the debt limit as a negotiating tool to extract spending cuts and push stiffer work requirements for some federal programs. But as the date when the country will officially default grows closer — Treasury Secretary Janet Yellen has said the “x date” for default will be in early June — experts are looking at options outside of Congress.

If Biden chooses to ignore the debt limit, Tribe said the consequences of default would still be a problem.

“Even though the president would, I think, have the constitutional duty and authority to borrow doesn’t change the fact that if the borrowing goes above the ceiling, the bond markets may go crazy,” Tribe said. “And that’s why Congress would be clearly harming the country and lots of people if it were not to raise the ceiling.”

Hawley, like most Republican senators, still doesn’t appear to be too worried about default.

“I don’t think he should try it,” Hawley said of Biden ignoring the debt limit. “But I don’t think we’ll come to that.”