Tribe smacks Geithner twice over debt limit posturing

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.

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.