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
Abbe Gluck abbe.gluck 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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Secretary Geithner understands the Constitution: The Republicans are violating the Fourteenth Amendment
In response to Larry Tribe's op-ed today, Treasury General Counsel George Madison, speaking on behalf of Secretary Geithner, made two important points, both of which are correct, and only one of which seems to be understood by the press:
The first point is that "Secretary Geithner has never argued that the 14th Amendment to the U.S. Constitution allows the President to disregard the statutory debt limit. As Professor Tribe notes, the Constitution explicitly places the borrowing authority with Congress, not the President." This is correct. The President may borrow money on the credit of the United States only with Congress's authorization. In a previous post I noted that in the most dire emergency this authorization might even come after the President acts, as it has in the case of military emergencies, but an authorization is still required.
The second point is that "The Secretary has cited the 14th Amendment’s command that “[t]he validity of the public debt of the United States… shall not be questioned” in support of his strong conviction that Congress has an obligation to ensure we are able to honor the obligations of the United States. Like every previous Secretary of the Treasury who has confronted the question, Secretary Geithner has always viewed the debt limit as a binding legal constraint that can only be raised by Congress." (emphasis supplied).
This is what the press is missing. Secretary Geithner is saying that Congress is not living up to its constitutional obligations. Let me put it differently: The current strategy of congressional leaders in the Republican Party violates the Constitution because they are threatening to take us over a cliff in order to push their radical policy agenda. Threatening to undermine the validity of the federal debt in order to gain political points is precisely what section 4 was designed to prevent. Secretary Geithner does not believe that the President is allowed to violate the Constitution himself to stop congressional Republicans, but it does not follow that what the Republicans are doing is constitutional.
The press so far has been asking whether the debt ceiling is constitutional. The correct question they should ask is whether the Republican strategy of hostage taking violates the Constitution. It does.
You may ask: what good is saying that the Republicans are acting unconstitutionally if President Obama is unwilling to threaten to raise the debt ceiling by himself? The question answers itself: If the public believes that the Republican Party is violating the Constitution and the President is defending the Constitution, that puts a different sort of pressure on Republicans.
The problem that the Obama Administration faces, in my view, is that it has not made this constitutional claim early enough and often enough in the past several months. Instead, the President has proceeded in public as if there are no hostages, and therefore there is no unconstitutional threat. The President may believe that this approach will make it easier for him ultimately to strike a deal. But if the public believes that the Republicans are violating the Constitution, and that as a result the economy is about to collapse, this would seem to give him a bargaining advantage of a different kind.
Moreover, by not denouncing the Republican strategy now on constitutional grounds, President Obama virtually guarantees that this same hostage taking strategy will be used repeatedly whenever a House of Congress controlled by one party wants to stick it to a White House controlled by the other. Indeed, one can expect that the Republican Party will continue to use this very same strategy as soon as the next debt ceiling is reached, for if it made President Obama roll over the first time, why not try it again and again?
The President should take a constitutional stand now and insist in any deal that is struck that Congress automatically raise the debt ceiling whenever it appropriates new expenditures, as was the practice until recently. This approach would prevent a future Congress--or even this one--from violating the purposes behind section 4 of the Fourteenth Amendment.