The Supreme Court Should Not Get to Decide If We Default on Our Debt

Over the past several weeks, the president’s constitutional duty to “take care” that the laws are faithfully executed in the face of conflicting statutes, as well as discussions around whether the debt limit statute itself violates the 14th Amendment, have become central to the debate about what should be done to resolve the looming debt ceiling crisis. The president is not only on solid ground to understand the Constitution, as my colleague Joseph Fishkin and others have described it. He is also on strong ground to assert his constitutional duty in this way—even if the Supreme Court might think otherwise.

Commentators engaged in the debt ceiling debate are rightly beginning to recognize the president’s power and duty to act under the Constitution in ways that mitigate harm to the American people. But many of these same commentators have nonetheless retained a set of faulty underlying assumptions about the role of the Supreme Court in the debate, treating the justices like umpires (even if relatively biased ones) rightly positioned to adjudicate among competing takes. Will conservative justices side with business interests to avoid a default, or with House Republicans, eager to constrain the president’s power? Most take it as given that, while the president may “invoke” some special provision of the Constitution, the Supreme Court has the final say about whether this is permissible, based on its special powers to divine or interpret the meaning of the 14th Amendment.

This basic idea—that the Supreme Court has final and ultimate say on the meaning of the Constitution—is often seen as foundational to our system of government. Yet, as former Stanford Law School Dean Larry Kramer argues in his seminal 2004 work, The People Themselves: Popular Constitutionalism and Judicial Review, this idea is inconsistent with the common understanding of the Supreme Court’s role for most of our nation’s history. As Kramer describes, the version of judicial supremacy we have today is of “surprisingly recent vintage”—really only taking hold in the 1980s. Most of the founding generation would be dumbfounded to find out that a small group of unelected, elite lawyers had charged themselves with answering questions for all of us about the basic structure of our government or about the very terms of our economy. (And, it should be noted, a growing share of Americans today would agree: 45 percent of Americans say the Supreme Court has “too much power,” up from 25 percent just three years ago.)

Instead, as Kramer and others have argued, it is “the people themselves,” not the Supreme Court, that have the ultimate authority and final say over what the Constitution means. In our modern government, “we, the people” act through our elected representatives, so popular constitutionalism is often closely linked to what legal scholars call “departmentalism.” Under “departmentalism,” each branch of government (or “department”) can and should have co-equal authority to interpret the Constitution to guide its decision-making. The president should determine for himself what it means to take care that the laws are faithfully executed on our collective behalf, and act accordingly. The Supreme Court can—and may—disagree, but it is the people, acting through the political branches, who should have the ultimate authority and last word, not the court.

These are not some abstract questions for the academy; rather, they are the real-world dilemmas that some of our most influential presidents have faced, including Jefferson, Jackson, and Franklin D. Roosevelt. Does this mean that the president should willfully ignore the Supreme Court on every issue where they disagree? No, it does not. But it should give additional weight to any so-called constitutional option the president may be weighing—not as some wild-eyed, ahistorical decision to ignore the laws or the courts, but as a sober analysis by a popularly elected president to act in accordance with the wishes of the majority to avoid an economic catastrophe.

President Biden is on strong ground to faithfully execute the laws in this circumstance as he sees fit, and the Supreme Court should not be seen as an umpire whose job it is to divine the meaning of a sacred document from on high. The stakes for “we, the people” are too high for anything else.

More From Our Debt Ceiling Series