[Guest post by Aaron Worthing; if you have tips, please send them here. Or by Twitter @AaronWorthing.]
As you might remember, first Prof. Laurence Tribe corrected Geithner and others on their interpretation of the Fourteenth Amendment, stating that nothing in it abrogated the statement in Article I, Section 2, Paragraph 2 of the Constitution that only Congress can borrow money on the credit of the United States. The General Counsel for the Treasury Department responded claiming that Geithner was not implying that he would unilaterally increase our debt. And now Tribe has responded, in a letter to Jack Balkin for publication:
I just read the following post on your blog regarding the presumably sincere but (to my mind) unconvincing attempt by Treasury’s GC to walk his boss back from the constitutional (if not the fiscal) brink. I’m of course delighted that Secretary Geithner is (and claims always to have been) in agreement with you and with me that the Constitution squarely places borrowing authority with Congress, not with the President, so that Sec.4 of the Fourteenth Amendment gives the President no constitutional “silver bullet” here – although, as you rightly stress, the Constitution does give us all a strong basis to insist, as you put it, that “Congress is not living up to its constitutional obligations” when it plays Russian roulette with the public debt.
That said, there remains the question whether the Secretary was at least suggesting until very recently, as I said he was in my op-ed, that the President might have a constitutional option that he might be legally free to exercise unilaterally. From my perspective, the importance of showing that this option was illusory was heightened by the fact that it wasn’t just a pundit or a professor here and there who was dropping that hint but the Secretary of the U.S. Treasury who appeared to be doing so.
In that regard, I’m attaching the letter I sent on Friday afternoon to Secretary Geithner’s chief of staff, Mark Patterson, to set the record straight after Mr. Patterson phoned to chastise me for attributing to his boss a view at which the chief of staff insisted the Secretary had never hinted.
And do read the whole Balkin post. But I take two things out of all of this.
First, it is very hard not to believe that Geithner was suggesting that they do exactly that—use the Fourteenth Amendment to ignore the debt ceiling. After all, when Tribe criticized this view, they were very quick to correct that statement. But on the other hand, Geithner’s initial comments were made last month, and as Tribe notes, “it was widely understood and reported at the time, and since, that the Secretary was suggesting that he regarded the constitutional option, as something the Executive Branch might deploy to ensure that a default ‘not . . . happen,’ as being very much on the table.” The point, and Tribe alludes to it, is that Geithner at the very least happily let everyone interpret his remarks that way and it was only when Tribe made that position look ridiculous and unwise, that he suddenly felt the need to disavow that position.
Second, I find it interesting that Tribe is still pursuing this point. It would have been very easy to say to himself, “whether he meant his implication or not, he is not going to do it now, so my work here is done.” Instead Tribe felt the need to publicly correct Geithner, again.
Hat Tip: Adler.
[Posted and authored by Aaron Worthing.]