“I’m looking at the 14th Amendment as to whether or not we have the authority,” U.S. President Joe Biden told reporters on May 21. “I think we have the authority.”
The “authority” he speaks of is the power to borrow money on the credit of the United States, which the U.S. Constitution reserves exclusively to Congress. “Invoking” the 14th Amendment wouldn’t change that. There are precisely two ways in which he could exercise such power.
The first would be a constitutional amendment creating such a power for him. That would require approval of 2/3 of both houses of Congress and ratification by 3/4 of the states. Unlikely, especially on a short timeline.
The second would be ignoring the Constitution, doing whatever he feels like doing, and daring Congress to challenge him on the matter.
Which, especially since World War II, is pretty much business as usual.
Truman went to war with North Korea. Johnson went to war with North Vietnam. Bush went to war with Iraq and Afghanistan. Not to mention a great many smaller conflicts, without a single congressional declaration of war, and without a single impeachment proceeding for going to war without that required congressional declaration.
A number of presidents have negotiated and implemented international agreements without the required Senate ratification, via the simple subterfuge of not calling them what they were: Treaties. Recent examples include Barack Obama’s “Joint Comprehensive Plan of Action” (aka the “Iran nuclear deal”) and Donald Trump’s “Agreement for Bringing Peace to Afghanistan.”
The prerogatives of the imperial presidency go beyond foreign policy, of course. Take, for example, Trump’s 2019 theft of funds appropriated for “defense” by Congress to build his “border wall” (after Congress had expressly denied him funding for that project multiple times). Congress’s response? A resolution “rebuking” him.
The Constitution is meaningless if it’s toothless — if there’s neither any reversal of, nor any penalty for, actions which violate it. That’s as true at the level of the presidency as at the level of a local beat cop conducting a search without the constitutionally required warrant.
As 19th-century anarchist Lysander Spooner wrote, “whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”
Perhaps we should stop pretending, against all available evidence, that it DOES exist.
Thomas L. Knapp (Twitter:@thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.