Patterico's Pontifications

7/11/2011

Tribe to Geithner: Yes, You Did Imply That the Fourteenth Amendment Allows You to Increase the Debt Without Congressional Approval

Filed under: General — Aaron Worthing @ 7:05 am



[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:

Hi Jack,

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 timeand 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.]

32 Responses to “Tribe to Geithner: Yes, You Did Imply That the Fourteenth Amendment Allows You to Increase the Debt Without Congressional Approval”

  1. None of this would have ever happened were it not for Bush’s tax cuts for millionaires and billionaires and unfunded wars and Kyoto.

    JD (b98cae)

  2. we should never have waged an unfunded war on kyoto… what did they ever do to us? i mean since WWII?

    Aaron Worthing (b1db52)

  3. Government employee and tax cheat, TimmuhG, doesn’t think the rules are for him?
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    Shocka!

    Sponge Bob Square Pants (786e37)

  4. Charles Rangel wants to critique TimmuhG vis-a-vis Timmuh’s desire to strip Congress of this power, but unfortunately, his position is that the ex-Chair of the House Ways and Means should have a special “golden” vote which is equal to 300 Rebulican Votes if ever the House ever wishes to pass a budget the Demoncraps don’t like.
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    Constitution, how outdated!!!! How could Ben Franklin and THomas Jefferson ever have imagined online porn nullifies and renders useless that ld piece of paper.

    Sponge Bob Square Pants (786e37)

  5. ol=old.

    Sponge Bob Square Pants (786e37)

  6. Carter re-dux…
    U.S. Embassy Overrun…
    Syrian mobs loot Embassy in Damascus.

    Who said a repeat of Carter would be a “best-case scenario”?

    AD-RtR/OS! (53cd3a)

  7. Ad

    if that isn’t a rhetorical question… it was glenn reynolds, among others.

    Aaron Worthing (b1db52)

  8. AW…It was entirely rhetorical, and sad.
    But, this is what happens in the ME when you’re being led by a Weak Horse;
    not to mention the idiocy of our vaunted SecState, and She Who Was Speaker!

    AD-RtR/OS! (53cd3a)

  9. Tribe is still pursuing the point, despite having won an increasingly rare public-policy-spat victory, simply because he has a huge ego. Like a vampire that’s gone for years without blood, he must feast when he gets this rare opportunity: I’M STILL SMART AND RELEVANT! LOOK AT ME!

    Thus continues the sunset of a man once called a wunderkind and likely SCOTUS pick.

    Richard Stengel (890cbf)

  10. Whoops, “Richard Stengel” there was me.

    Mitch (890cbf)

  11. Sock-puppet Friday strikes again!

    AD-RtR/OS! (53cd3a)

  12. Mr Worthing: it is Timothy Geithner, not Geitner.

    The nitpicking Dana (5a4fb2)

  13. It’s easier just calling him Turbo-Tax Timmy!

    AD-RtR/OS! (53cd3a)

  14. dana, what are you talking about? i spelled it that way!

    er, okay, no i just fixed it. thanks for being nit-picky.

    Aaron Worthing (b1db52)

  15. Is it really any surprise that in this throw-it-against-the-wall-and-see-if-it-sticks administration such blatant disregard for the rule of law would be on public display? He floated the idea out there and then waited to see if he would receive any opposition from the LEFT. As soon as he did receive it he walked back his statement. If the only criticism he had received was from the right he would still be threatening executive action right now.

    Remember, he comes from the mindset of Harry “Americans are NOT obligated to pay federal income taxes” Reid and Cass “we ARE their betters” Sunstein.

    Icy Texan (f33932)

  16. “he” being Geithner, of course.

    Icy Texan (f33932)

  17. Either Tribe figures Obama is a one term president and there won’t be any SCOTUS vacancies for the remainder of his term, or he’s given up hope of getting an appointment even if one appears during an Obama presidency.

    Callawyn (bab74a)

  18. Callawyn,

    Oh, I think Tribe rightly gave up that hope over a decade ago, when he was forced to admit substantial guilt to charges of plagiarism.

    Plus, even if THAT hadn’t happened, he’s 69 now.

    Mitch (890cbf)

  19. Speaking of plagiarism, I’ve argued elsewhere for an expanded definition of plagiarism to include direct misrepresentation. That is, if you make up direct quotes and attribute them to another, then that’s plagiarism too.

    Am I wide of the mark?

    ropelight (a1fbb3)

  20. No, that’s prevarication (to put it nicely).

    AD-RtR/OS! (53cd3a)

  21. The 14th amendment also Allows Charles Johnson to ban people for disagreeing with him.

    DohBiden (15aa57)

  22. 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.

    Hmmm, Tribe wants it both ways, it seems. First he admits it is Congress’ prerogative, but then accuses them of abrogating their duties by not raising the limit. If there is only one possible choice, they wouldn’t really have any power, would they?

    Tribe is too old for SCOTUS now. The Democrats will look for young candidates who can twist and pervert the Constitution for many decades to come. Elections matter.

    Estragon (ec6a4b)

  23. ropelight wrote:

    Speaking of plagiarism, I’ve argued elsewhere for an expanded definition of plagiarism to include direct misrepresentation. That is, if you make up direct quotes and attribute them to another, then that’s plagiarism too.

    Am I wide of the mark?

    Does this mean the end of Sockpuppet Fridays? 🙁

    The Dana who loves Sockpuppet Fridays, even though he doesn't always get to play (5a4fb2)

  24. And, good Lord, what would that mean for my blog tagline, “‘The trouble with quotes over the Internet is that you never know if they are genuine.’ — Abraham Lincoln?”

    The blogger Dana (5a4fb2)

  25. Dana, rest assured what I say has no influence on Sockpuppet Fridays.

    BTW, it was on your site I made the argument for an expanded definition of plagiarism.

    Best Regards.

    ropelight (e131dc)

  26. Second, I find it interesting that Tribe is still pursuing this point.

    The smart democrats know the Democratic party began to implode a couple of years ago. 2010 will historically be seen as when it really became known, but some on the left won’t realize it until 2012 or even later.

    The smart democrats, and yes, that includes liberal conlaw profs, know to begin to distance themselves from radicalism as early as possible. If there’s to be any saving the democrat party, it will be from not being totally defined by Barack Obama for the next ten-twenty years.

    Bill Clinton was, for some reason, really good for the democrat brand, and I think that is done now.

    Tribe cannot sit quietly, satisfied that the constitution won’t be torn to shreds, now that Geithner (and hopefully the administration) had seen the light. For one, this administration could easily change its mind again. They are inconsistent.

    I really wonder if we’ll see someone significant challenge Obama in the primary. They would probably lose, and either way, the democrats would be weaker in the general, but long term, repudiating Obama would be worth it.

    Dustin (b7410e)

  27. Dustin: That’s be $190, please (Heh!).

    AD-RtR/OS! (7e41e8)

  28. ha!

    Seriously, I would be pretty screwed if you set tax policy.

    Dustin (b7410e)

  29. Just call me “Conrad”.

    AD-RtR/OS! (7e41e8)

  30. I really wonder if we’ll see someone significant challenge Obama in the primary. They would probably lose, and either way, the democrats would be weaker in the general, but long term, repudiating Obama would be worth it.

    I’ve been saying since the day after the 2008 election that Clinton would challenge 0bama, and try to do to him what Kennedy very nearly did to Carter. And since, as far as we know, she hasn’t killed anybody, I see no reason why she shouldn’t succeed.

    If she does succeed in taking the nomination from 0bama, she will have to mollify the black voters, or they will stay home. To that end she will need a black running mate. She’d need a moderate, though, with whom she could credibly run. As of November 2008, I thought the most likely candidate was Harold Ford; but since then he crashed his political career. The same applies to David Paterson, who enjoyed a brief popularity around then but is now a pariah. So who is left? Someone who will play on the national stage without being too far left for her? A few weeks ago Buzzsawmonkey made the perfect suggestion: Michael Steele. He’s been acting and speaking more and more like as if he would be willing to jump ship for the right price, he would give her serious bipartisan cred, and that’s a ticket that could seriously win.

    Meanwhile, on the Republican side, I see no reason yet to revise my original prediction, made right after the 2008 election: Palin/Jindal. In other words, there will be no white men on either major party’s ticket!

    Milhouse (ea66e3)

  31. That is pretty interesting to consider. Palin Jindal vs Hillary Steele.

    Wow. Happyfeet’s head would explode. Mine too. But Steele could be that sort of guy. My guess is Perry + True Conservative vs Obama Clinton.

    Dustin (b7410e)


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