At his impromptu press conference after meeting with congressional leaders yesterday, President Biden said that he's "thinking about" Section 4 of the 14th Amendment as a Plan B in the event that no legislation raises or suspends the debt ceiling in the next few weeks, adding that he had come to that view because of the view recently expressed by Prof Laurence Tribe, who has long advised him on constitutional matters. However, Biden also said that the "the problem" with a unilateral presidential decision "is it would have to be litigated."

I count Biden's statement as substantial progress. I confess that at least a small part of my satisfaction is ego-driven. It's good to see Biden coming around to more or less the position that Prof Buchanan and I have long advocated: make utmost efforts to get legislation but if that fails, unilaterally issue debt in violation of the debt ceiling. It's also nice to see that our work seems to have played a causal, albeit indirect, role. The Tribe op-ed that apparently persuaded Biden closely followed the Buchanan/Dorf analysis, linking our 2012 Columbia Law Review article with the phrase "the most insightful literature" and citing no other scholarship.

To be sure, neither the Tribe op-ed nor the Buchanan/Dorf argument (in countless articles and essays) depends primarily on the 14th Amendment. As I noted earlier this year, the primary basis for unilateral presidential action in the event of congressional failure to raise the debt ceiling would be separation of powers. Still, as Prof Buchanan explained here last week, although the better argument makes the 14th Amendment unnecessary, an approach rooted in the 14th Amendment is not exactly wrong and is close enough to what we advocate that we would welcome the president's adoption of it. And Biden only referred to the 14th Amendment after a reporter specifically asked him about it. It's possible that he and his legal team would rely chiefly on separation of powers in any formal documents accompanying unilateral action.