Last Friday, Harvard Law School Professor of Constitutional Law Laurence Tribe wrote an op-ed in The New York Times blowing apart the argument many on the left were advancing; that Section Four of the 14th Amendment granted Treasury Secretary Tim Geithner the authority to ignore the debt limit and sell unlimited amounts of Treasury bonds. Tribe wrote:
Several law professors and senators, and even Treasury Secretary Timothy F. Geithner, have suggested that section 4 of the 14th Amendment, known as the public debt clause, might provide a silver bullet. … The Constitution grants only Congress — not the president — the power “to borrow money on the credit of the United States.” Nothing in the 14th Amendment or in any other constitutional provision suggests that the president may usurp legislative power to prevent a violation of the Constitution.
Treasury Secretary Tim Geithner’s General Counsel, George Madison then posted a letter to The New York Times editorial board objecting to Tribe’s assertion that Geithner ever signed on to the 14th Amendment option. Madison wrote: “Contrary to Professor Laurence Tribe’s assertion (Op-Ed, July 8), Secretary Geithner has never argued that the 14th Amendment to the U.S. Constitution allows the President to disregard the statutory debt limit.”
Tribe has since written Madison back, admonishing Geithner for behaving as if he ever supported the 14th Amendment 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.
It is pretty clear now that Geithner only floated the 14th Amendment option as a lame attempt to provide Obama with more leverage at the negotiating table. But the idea, as Tribe clearly lays out in his op-ed, was always preposterous. Still, the episode does demonstrate how fast Turbo Tax Tim is willing to play with the facts surrounding the debt limit debate. Republicans would be wise to take nothing Geithner says at face value.