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John Fetterman's Hot Takes on the 14th Amendment Are Coming Back to Haunt Him

AP Photo/Mariam Zuhaib

There's no way around it that Democrats are in disarray over what to do on the debt ceiling. Some are so loathe to the idea of negotiating with Republicans to raise the ceiling while cutting spending that they'd rather have President Joe Biden act unilaterally in a way that's legally dubious--at best--to avoid default by invoking the 14th Amendment. The usual suspects are at the helm, like Sen. Bernie Sanders (I-VT), who signed a letter urging Biden to go about such a route. Sen. John Fetterman (D-PA) also happens to have signed the letter, and tweeted some rather hot takes on it from his official account, including what the actual purpose of the 14th Amendment even is. 

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Last Thursday, his account tweeted a truly special thread. While the thread begins by offering that the 14th amendment should be used "if necessary," it quickly becomes clear that it doesn't take much for Fetterman to consider that to be "necessary" as he goes on to spew false narratives against Republicans. 

"This is the whole reason why the 14th Amendment exists, and we need to be prepared to use it. We cannot let these reckless Republicans hold the economy hostage," has come particularly under fire. 

The 14th Amendment, as any high school student knows, was an amendment adopted in 1868 as one of the Reconstruction amendments that deals with citizenship and the rights of citizenship, especially when it comes to "equal protection of the laws."

As Section I, the most well-known section reads, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

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While the 14th Amendment does include a section on debt, it's not until Section IV and reads "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. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void."

In a May 17 opinion piece for the Wall Street Journal, Law Professor Saikrishna Prakash argued against using the 14th Amendment:

Further, even if one assumes the 14th Amendment bars debt defaults, it nowhere authorizes the president to take whatever measures he deems necessary to prevent default. It no more empowers him to take such measures than it does you or me. As per the Constitution, Congress, not the president, has the power to “borrow money on the credit of the United States.” If the Constitution bars default and more money is needed to prevent default, Congress must act. The president can’t issue debt on his own say-so.

In his May 20 opinion piece for The Hill, Law Professor Jonathan Turley mentions Prakash's piece as he too argues against using the 14th Amendment:

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The drafters of this amendment did not want Congress to simply dismiss its obligations to pay off the Union’s debts from the Civil War. Although the amendment is not limited to those debts, it has nothing to do with debt ceilings set by Congress. Default, after all, is not a denial of the validity of debt, but rather a refusal or failure to pay debts in time despite their validity.

Courts have long left it to the political branches to work out such differences in what is often a game of chicken with default. Moreover, as University of Virginia law professor Saikrishna Prakash recently pointed out, there is more than enough federal revenue coming in each month for Biden to avoid default by paying the interest on the debt under existing federal law. That may cause temporary problems for other spending priorities — acute problems, even — but it hardly rises to the level of a constitutional crisis.

Instead, these senators are suggesting that a president does not need congressional approval to borrow and spend trillions of dollars, even though the Constitution explicitly grants both of those powers to Congress alone. They also claim that, by demanding budget cuts as a condition of permitting further borrowing, the House is violating the 14th Amendment.

He also referred to the argument to use the 14th Amendment as "constitutionally and logically flawed" in a tweet sharing his opinion piece. 

Even The Washington Post's editorial board warned on Tuesday that "The 14th Amendment won’t solve the debt limit crisis. Here’s what might." As they wrote at one point:

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“I’m looking at the 14th Amendment as to whether or not we have the authority — I think we have the authority,” Mr. Biden said over the weekend. "The question is, could it be done and invoked in time that it would not be appealed, and as a consequence past the date in question and still default on the debt. That is a question that I think is unresolved.”

“Unresolved” is putting it mildly. President Barack Obama’s legal team rejected this option during the 2011 debt ceiling crisis, and Mr. Biden himself has repeatedly expressed his own wariness to the expansion of presidential power it would require to declare the World War I-era law creating the debt ceiling to suddenly be void a century later.

Fetterman's thread concluded with telling off the U.S. Supreme Court if it dares to find that invoking the 14th Amendment is not a valid option, referring to the move as one that will "blow up our economy," and referring to the justices as "unelected."

Fetterman's tweets have resurfaced with screenshots shared over Twitter on Wednesday morning, including under the trend of "#DebtCeiling."

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A lawsuit is already in place to litigate the 14th Amendment. As POLITICO reported on Tuesday, U.S. District Court Judge Richard Stearns has already set a May 31 date to hear a lawsuit filed by a union arguing that Biden can use the 14th Amendment to avoid default. 

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