Harvard law professor Laurence Tribe has an op-ed in today’s NYT on the constitutional debate over the debt ceiling. He writes:
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. This provision states that “the validity of the public debt of the United States, authorized by law ... shall not be questioned.” They argue that the public debt clause is sufficient to nullify the ceiling — or can be used to permit the president to borrow money without regard to the ceiling.
Both approaches provide the false hope of a legal answer that obviates the need for a real solution.
That sounds right to me. Indeed, I found relatively little in Tribe’s op-ed with which to disagree. He notes that an interpretation under which any action which threatens default is unconstitutional would sweep too broadly, and notes the implications for executive power of any argument that would allow unilateral borrowing.
the argument that the president may do whatever is necessary to avoid default has no logical stopping point. In theory, Congress could pay debts not only by borrowing more money, but also by exercising its powers to impose taxes, to coin money or to sell federal property. If the president could usurp the congressional power to borrow, what would stop him from taking over all these other powers, as well?
Tribe concludes quoting Justice John Marshall Harlan II, “the Constitution is not a panacea for every blot upon the public welfare,” and suggests the solution to the current impasse is not to be found in the constitution, but in the political process.
UPDATE: The Treasury Department responds.