an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
[Professor Tribe has asked me to reprint two letters on the debt ceiling issue, one addressed to me and one sent to Secretary Geithner.-- JB]
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. In the large debate over how best to understand the Constitution in this situation and over whether this is one of those extraordinary circumstances in which presidential action to borrow (or, presumably, to tax) may precede rather than follow congressional authorization, this may seem too minor a matter to worry about. If that’s your view, I’d be content to live with it.
But if you agree with me that the record should be corrected, perhaps you could post my letter on your blog, particularly because the editors at The Times assured me after receiving the General Counsel’s letter that their fact-checkers had confirmed the accuracy of my account of the Secretary’s publicly expressed views as of the time my op-ed went to press and told me that they stand by the op-ed notwithstanding the Secretary’s complaint.
Laurence H. Tribe Carl M. Loeb University Professor and Professor of Constitutional Law Harvard Law School Hauser 420 1575 Massachusetts Avenue Cambridge, MA 02138
* * * * *
Mr. Mark Patterson Chief of Staff Secretary Timothy Geithner
Dear Mr. Patterson:
I am writing in response to your phone call this morning expressing Secretary Geithner’s objection to my inclusion of his name in my op/ed’s list of those who have “suggested” that the much-mooted constitutional option (in which the Executive Branch would disregard the statutory debt ceiling in order to avert what would otherwise be an unconstitutional default without halting spending on vital government programs) might provide a possible resolution to the deficit issue.
I certainly did not intend to mischaracterize the Secretary’s position on this vitally important issue; I am of course delighted to hear that Secretary Geithner has very recentlydisavowed the constitutional option; and I take you at your word that the Secretary never intended to suggest that the option had ever been under active consideration. Nonetheless, the understanding I expressed when my op/ed went to press was one that was very widely shared – mostly, it seems, on the basis of the Secretary’s interview this May 25 by Mike Allen at the Politico Playbook breakfast, which included the following exchange:
ALLEN: You’ve been clear about the risk in not acting on the debt ceiling. Do you think Members of Congress get that?
GEITHNER: I think the leadership absolutely understands it. I think the vast bulk of Congress understands it completely. I think there are some people that are pretending not to understand it, who think there is leverage for them in threatening a default.
I don’t understand it as a negotiating position. I mean, really, think about it, you’re going to say that, uh, can I read you the Fourteenth Amendment. . . . “the validity of the public debt of the United States authorized by law including debts incurred for the payments of pensions and bounties for services in suppressing insurrection and rebellion”—this is the important thing—“shall not be questioned.” So, as a negotiating strategy, you’re going to go say, “if you don’t do things my way, I’m going to force the United States to default—not pay the legacy of bills accumulated by my predecessors in Congress?” It’s not a credible negotiating strategy, and it’s not going to happen
Given the context in which this interview occurred, it was widelyunderstoodandreportedatthetime, andsince, 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. Indeed, it was reported just two days ago, without any denial as of the time my op/ed went to press, that Treasury was debating use of that very option.
I understand from press reports this morning and from your phone call that Secretary Geithner’s words were not meant to imply the possibility of executive action to disregard the statutory debt limit and, indeed, it has been reported as of late last night that the Secretary told Members of Congress last evening that he envisioned no such possibility. This is very welcome news. But leaving the matter ambiguous, in the current political climate, led many to suppose until after my op/ed went to press that the option remained an open one. And it is no wonder. When the Treasury Secretary of the United States pulls out an earmarked copy of the United States Constitution—in the midst of an interview about the debt limit—and does so in the course of explaining why, whatever Congress does or fails to do, a default on our nation’s public debt obligations simply is “not going to happen,” only an ingénue would fail to understand that the reason “[i]t’s not a credible negotiating strategy” for Congress to threaten not to raise the debt limit is that the Executive Branch holds the ultimate ace in the hole in the form of unilateral action to enforce the Constitution’s ban on default should that become the only remaining way out.
This is presumably why virtually all reporters and commentators understood the Treasury Department to be at least considering this position – an understanding that, so far as I am aware, Treasury made no effort to disown or dispel until very recently, even though Secretary Geithner’s remarks were repeatedly replayed in the context of discussions of the option of unilateral executive action.
I believe that the Secretary and I are now on the same page as a constitutional matter and that both of us share the objective of preventing a constitutional mirage from reducing the political pressure all parties ought to feel to come to a mutually acceptable, if mutually painful, compromise as soon as possible. I would appreciate your sharing this letter with the Secretary, and I will be sharing it myself with The New York Times.
Laurence H. Tribe Carl M. Loeb University Professor and Professor of Constitutional Law Harvard Law School Hauser 420 1575 Massachusetts Avenue Cambridge, MA 02138 Posted
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