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Republican leaders are once again doing that fun thing where they hold the whole country and its financial well-being hostage to their deranged obsession with shredding America's already meager social safety net. This time it's the so-called "debt ceiling" that GOP radicals are using to force unpopular spending cuts on an unwilling public. For months we've waited for House Speaker Kevin McCarthy (R-CA) and his unruly majority to come up with a sensible plan to avoid the calamity of default, which they will never do. So what President Biden should do instead is instruct the Treasury to keep paying America's bills with or without a debt limit increase. The plain language of the 14th Amendment forbids defaulting on our public debt and Democrats should start acting like it.
If that sounds crazy given Beltway obsession with debt ceiling struggles over the past decade, I encourage you to read the Constitution. Section 4 of the 14th Amendment (known as the Public Debt Clause) 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." I know this is not what most people remember about the amendment that gave citizenship and equal rights to formerly enslaved people, but it's right there. Can't miss it.
I think you can make a pretty airtight case that passing a law which requires defaulting on the public debt of the United States if Congress doesn't lift an arbitrary "ceiling" amounts to "questioning." It's like if the Constitution had a clause that reads "The validity of the president's right to drink unlimited martinis shall not be questioned" and then Congress passed a Martini Ceiling limiting the president to three a night. Is there any question that the president would simply ignore such a brazen affront to the Constitution and continue pouring himself or herself as many martinis as they wanted?
Don't believe me? Here's Pepperdine Caruso Law Professor Jacob D. Charles in a 2013 Duke Law Journal article: "Directed by well-defined constitutional guideposts, the president should disregard the debt limit when congressional obstructionism rises to the level of creating substantial doubt about the continuing validity of the public debt." As Charles argues, the Public Debt Clause was crafted precisely to avoid "widespread and pervasive lack of trust in the ability (or willingness) of the government to fulfill its obligations."
Caruso is hardly alone in this interpretation. The problem, of course, is that someone will go jurisdiction shopping to get a challenge in front of the least qualified, most partisan Trump judge in the country, and then the whole thing will go to a Supreme Court that has demonstrated time and again over the past two decades a willingness to bend the Constitution to fit whatever interpretation best suits Republican power. And it would be no surprise if Justice Sam Alito and his fabulously corrupt gang of partisan zealots ordered Biden to default on the debt and send the global economy into a tailspin.
Biden should then ignore the Supreme Court and keep paying America's bills. He should do so not just because he would be absolutely right to disregard a ruling that so clearly contradicts the explicit language and intent of the Constitution but also because the only way to convince the far-right that Democrats can play judicial hardball, too, is to do it. We have long since arrived at the point where creative exploitation of the Constitution's many loopholes is going to be necessary to deal with this rogue, hopelessly compromised Supreme Court. Letting the right's ill-gotten 6-3 ultra-conservative majority wreak havoc on American society indefinitely is not a plan.
Yet that's been the only strategy we've seen from leading Democrats—up until now including the president. On abortion, for example, the sum total of the party's strategy seems to be to hope the voters give Democrats Joe Manchin-proof majorities in the Senate, so that the filibuster can be nuked and Roe v. Wade codified. Well guess what: that's not going to work, either. The legal far-right already has a plan to challenge a national bill legalizing abortion, and that plan will end up in front of this same Court unless—and I can't emphasize this enough—senior figures in the Democratic Party start moving forward with plans to undercut, neuter, or expand the Supreme Court.
In short, Democrats, including the president, need to start pretending the Supreme Court doesn't exist when it issues objectively insane rulings. It's like one of those horror movies where someone sees a ghost, closes their eyes and says "You're not real, you're not real, you're not real" until they open their eyes and the apparition has vanished. The Supreme Court isn't real. It's grotesquely abused and vastly over-interpreted authority is to be found nowhere in the Constitution itself and only works because we allow it to.
If the blinkered extremists currently in charge of the Supreme Court are ever to step back from the brink of destroying the institution they were entrusted with, they have to be credibly threatened with political and legal retaliation by people who mean it. And there's no better place to start than an issue where Democrats have public opinion, along with the legal and moral high ground, on their side.
David Faris is an Associate Professor of Political Science at Roosevelt University and the author of It's Time to Fight Dirty: How Democrats Can Build a Lasting Majority in American Politics. His writing has appeared in The Week, The Washington Post, The New Republic, Washington Monthly and more. You can find him on Twitter @davidmfaris.
The views expressed in this article are the writer's own.
