Constitution in the National Archives

Constitution in the National Archives by Mr. T in DC

It was fun while it lasted, though I never thought this Administration would try anything so risky. And indeed, today the Treasury Department’s General Counsel, George Madison, via an email to the New York Times, says that they have no ability to issue debt if Congress doesn’t increase the debt limit. This ends speculation that the President could invoke section 4 of the 14th Amendment, and its clause that the public debt “shall not be questioned,” as an end run around the whole debt limit situation. Of course, it’s become completely clear that the President has no interest in end-running the debt limit vote, but using it as leverage to get major, transformational changes to the scope of government and the future of the social safety net in place.


Here’s the email:

To the Editor:

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. As Professor Tribe notes, the Constitution explicitly places the borrowing authority with Congress, not the President.

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.

What’s funny is that Tribe agrees with Treasury that the debt limit is a binding legal constraint. They only take issue with Tribe’s example of Geithner waving the 14th Amendment around back in May.  [cont’d.]

So Geithner’s idea of using the 14th Amendment as leverage was to point to it and say, “see, it shall not be questioned, so… go do your job.” This is as if the Constitution was a suggestion box for Congress, rather than the ruling authority.

But there’s no real use carping about this now. The President has made his decision. It’s only a matter of whether he can get the votes to agree, and how painful the result will be. The pain is now inescapable, with the Constitutional safety valve just shut off.

Incidentally, in the event of a default, the Treasury Department will explicitly be breaking the law, in one form or another. What they have said today is that they will not use the 14th Amendment of the Constitution, and instead break the law in other ways.

David Dayen

David Dayen