Let me just say I have no affection whatsoever for Tim Geithner, but a lot of respect for Jack Balkin. In his latest article at his site, he makes an important case here that the press seems very intent on missing: The Republicans are violating the Fourteenth Amendment.
Secretary Geithner understands the Constitution: The Republicans are violating the Fourteenth AmendmentJB
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 “
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 the should ask is whether the Republican strategy of hostage taking violates the Constitution. It does.
more: ttp://balkin.blogspot.com/2011/07/secretary-geithner-understands.html
(bold edits mine).
Balkin's previous opinions, mainly the one linked above are well worth reading.
Part of the conclusion- re: "under what circumstances", but the whole argument is here:
http://balkin.blogspot.com/2011/07/under-what-circumstances-can-president.html
Such an act, in my view, is not legal when done, but it may become legal later on, if Congress approves. But it is a dangerous maneuver. If Congress does not approve it after the fact, then the President has acted illegally, and he may be impeached and removed from office.
Such an act may be necessary. It may stave off disaster. But it is no way to run a country.
Suppose, however, that it came to that. If the bond markets are going crazy, America's economic reputation is being destroyed, and the world economy is facing disaster, I do not doubt that Congress will approve the President's efforts to save the country after the fact. Congress will raise the debt ceiling (what they should have done in the first place) and declare that the new bond issues are valid.
Congress may be very angry at the President for acting, and they may denounce him, but they will recognize he acted in an emergency that they themselves created. The members of Congress will also recognize that if they impeach him for saving the economy, they will damage the credit of the United States even more.
It will likely never come to this. Congress will raise the debt ceiling long before the markets begin to crumble. Or, at the first sign of crumbling, Congress will almost certainly raise the debt ceiling. But if this does not happen, then I have described the very limited circumstances under which the President might act.
Note, however, that this is very different from asking whether the debt ceiling is constitutional or unconstitutional.
More on the
politics in this Hill article today:
Legality of 'Fourteenth amendment solution' comes under fireBy Alicia M. Cohn and Daniel Strauss - 07/10/11 05:47 AM ET
Legal scholars are discrediting the idea that the president has the power to circumvent the debt ceiling set by Congress in order to avoid a government default.
http://thehill.com/homenews/administration/170555-legality-of-14th-amendment-solution-under-fire"No political upside." Comment sampling from both sides-
"I do think politically it's a dead issue," Levy said, because "there's no political upside." The president would end up under fire for circumventing Congress, and would likely face a drawn-out legal battle.
Rep. Barney Frank (D-Mass.) said something similar in a Senate Democrat policy hearing on Thursday. “The political bitterness and the vitriol would be amplified” by using a 14th amendment solution," he said.
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