July 8, 2011

Laurence Tribe on the absurdly strained notion that the debt ceiling violates the 14th Amendment.

A NYT op-ed:
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... nullify the ceiling — or can be used to permit the president to borrow money without regard to the ceiling....

Some have argued that this principle prohibits any government action that “jeopardizes” the validity of the public debt. By increasing the risk of default, they contend, any debt ceiling automatically violates the public debt clause.

This argument goes too far. It would mean that any budget deficit, tax cut or spending increase could be attacked on constitutional grounds, because each of those actions slightly increases the probability of default. Moreover, the argument is self-defeating. If it were correct, the absence of a debt ceiling could likewise be attacked as unconstitutional — after all, the greater the nation’s debt, the greater the difficulty of repaying it, and the higher the probability of default....
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....

Worse, 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?
Oh, how ploddingly boring Professor Tribe is! Vividly creative lawprofs have perceived that the 14th Amendment transformed the President into a dictator, and here comes Tribe with his gigantic wet blanket of case citations and constitutional texts. So wooden and formalistic!

The Constitution is alive! Have you not heard? A seed has been found: the public debt clause. It has fabulous growth potential. It had life from the moment these legal geniuses inseminated that ovum of constitutional text. And you would snuff out their brilliant conception? Heartless! That is so lacking in... empathy.

57 comments:

Lucius Septimius said...

Yeah ... the debt clause in the 14th Amendment nullifies Article 1 of the constitution. I'm sure that's what they had in mind when they approved it.

Sixty Grit said...

Abort them and their repugnant ideas. It's the liberal way.

Browndog said...

Beautiful summary-

A pleasant reminder why I like reading Althouse..

Scott M said...

Moreover, the argument is self-defeating. If it were correct, the absence of a debt ceiling could likewise be attacked as unconstitutional — after all, the greater the nation’s debt, the greater the difficulty of repaying it, and the higher the probability of default....

This should come as no surprise as the Obama administration works ceaselessly at self-defeat.

Calypso Facto said...

Like Fred Upton and lightbulbs, Mr. Tribe has perhaps (hopefully!) discovered that the "meaningless Constitution" views he espoused during the Obamacare debate are on the wrong side of history...

george said...

I would expect impeachment proceedings to begin immediately were they to try this dodge. You really can't underestimate the intelligence of the people in this administration though so it would not surprise me a bit if Obama were to try it.

This is like their policy for handling illegal combatants. They just don't think anything through.

traditionalguy said...

So why not print all of the money we need?

It is those selfish money holders who want their saved money to retain value until spend it later.

I for one am glad that the 14th supports destruction of those greedy money holders who fly around us in private jets.

My new party will be called the FREE MONEY REDISTRIBUTIONISTS. It is a spin off of the Atlanta School System.

Curious George said...

Former Alito clerk Sen. Mike Lee on this subject:


Schooling Timmy

Scott M said...

Excellent link.

The Crack Emcee said...

How do I do it?

I Have Faith (No One Will Make Any Sense At All)

And they don't,...

Peter said...

"When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master— that's all."

-- Lewis Carroll, Through the Looking Glass

virgil xenophon said...

TG/

We had much this conversation about a year or so ago. I think Freeman Hunt said it best back then about Obama's borrowing/printing penchant and our indebtedness to the Chinese: "Free Chinese ponies for everybody!" LOL!

Mick said...

And Tribe knows that Obama is an ineligible NON natural born Citizen, since he said at the Resolution 511 hearings that natural born Citizens are born "WITHIN the Territory and ALLEGIANCE of a Nation".

Allegiance as per Elk v. Wilkins means totally within the political family of the US w/ no allegiance to any other foreign power. Obama was born British, w/ allegiance to Britain due to birth to a British Subject father, and the British Nationality Act 1948, and is not eligible.
Allegiance is a singular concept.

Fred4Pres said...

The Van Helsing of a "Living Constitution!"

Fred4Pres said...

Mick is definitely a hedgehog and I support his nomination to the Supreme Court of the United States.

rocketeer67 said...

It had life from the moment these legal geniuses inseminated that ovum of constitutional text. And you would snuff out their brilliant conception?

For the first time in my life, and just this once, I Support Abortion.

EDH said...

Eh, give Tribe credit for not taking the adminstration position, especially if it was only a bluff.

David said...

Shorter version of the Geithner 14th Amendment argument:

"The Constitution permits everything we want to do and prohibits everything you want to do.

DaveW said...

I wonder if this "the president can borrow all he wants" idea was floated by the White House (or its allies) or the opposition. It's so transparently dumb I have to wonder if even the White House would say it.

Surfed said...

You are merciless my dear. Absolutely without empathy merciless. Poor Meade on the other side of an argument with you!

nevadabob said...

The 14th Amendment doesn't prevent Obama from TRYING to spend the country into oblivion.

Since Republicans wouldn't sue to stop him, or impeach him, he ought to go ahead and do it.

Fuck it. You can do anything you want if nobody ever calls the cops or moves to stop you.

Republicans don't have the fucking BALLS to stop Barack Obama doing anything he wants.

caseym54 said...

Under this theory it would be possible for the President to order troops quartered in private houses, in peacetime, to lessen costs. Which law profs should love, given the dearth of good 3rd Amendment cases.

Carol_Herman said...

Demonstrating, yet again, the harvahd law is a hot bed of illiteracy.

The PR wonders are doing everything they can to "pass" the lifting of the debt ceiling.

Where it has been hoped the stupid party would lend a hand in "barn raising."

Nancy Pelosi is still the most surprised politician on this planet! She was sure obummer-care was gonna make her popular!

Every day obama awakes ... he peeks out the window ... And, he sees the promised love he was supposed to get from the masses ... never arrived.

He stuck a trillion dollars into the machinery. And, all he sees are failures.

Can his team of spin doctors cure this patient?

Will Chavez live the way Castro lives? Alive, when most people would have been dead.

Will we be a people left with "NO SAY?"

Will Karl Rove win and selected the next McCain? Will Sarah run as an independent?

When we vote in November 2012, will Castro and Chavez be dead? Will it still be Che's tee-shirts that sells better?

Will America grow restive? Will viollence be added to the mix?

I've been thinking for a while, now, obama wants a race riot. With tanks in the streets.

Shouting Thomas said...

I've been thinking for a while, now, obama wants a race riot. With tanks in the streets.

That's always been the great leftist dream.

Yesterday's bit about Obama and his mom and day ventured into this area.

As I said, a visit to the cafes along Telegraph Avenue or the bars along San Pablo Avenue in Berkeley is very instructive. This is where the radical young white girls go to find a Black Jesus for mating. Obama's mom, although (I don't think) never at Berkeley, was one of those types. Dad was one of those Black Jesus guys.

Always, the hope among these folks is that they can incite the great race war that will lead to the revolution.

Not saying the Prez is up for this.

WineSlob said...

It had life from the moment these legal geniuses inseminated that ovum of constitutional text.

The N'er-Do-Well Scholars Plucked
Words Here and There and then Clucked
That the Constitution Allowed
Whate're Obama Espoused
'Til the Document was Totally Phucked.

Zaggs said...

Here is what I want to know. The 14th says debt must be authorized by law. But it does not specify what that law should say. Isn't the debt ceiling not a "law"? Hence wouldn't any money spent passed the debt ceiling not be valid as it was not authorized by law?

MaggotAtBroad&Wall said...

I rather enjoyed the unusally large heap of snark and ridicule in the final two summation paragraphs.

nevadabob said...

"With tanks in the streets. That's always been the great leftist dream."

Yea, sure. I have news for you moron lefties. Barack Obama keeps the troops killing brown people overseas because he doesn't want all that angry firepower back here in the United States aimed squarely at his narrow ass.

He's engaged in 5 wars for a reason, folks.

t-man said...

Zaggs, I was thinking the same thing.
The text of Section 4 of the 14th Amendment itself refutes the idea tha the debt ceiling is unconstitutional. By negative implication, it expressly allows for the complete invalidation of public debt that exceeds the statutory limit. (I'm not saying that such invalidation would be wise.)

Mick said...

Fred4Pres said...
"Mick is definitely a hedgehog and I support his nomination to the Supreme Court of the United States."


Don't know what that means, but what difference does Tribe's opinion make if he, then Constitutional scholar, will not outright call Obama ineligible, even when his own definition of natural born makes his 'Star Student" ineligible? Does Obama have to obey the Constitution if his very position violates it?

DADvocate said...

Remember when all the lefties were predicting Bush would declare martial law and become a de facto dictator? Bush showed much more respect for the Constituion than Obama and his cohorts ever entertained. They're more than willing to let Obama follow Caesar's path. Just wait and see.

X said...

every schoolkid in the history of America knows Congress controls the purse. we should probably choose someone who was a schoolkid in America next time.

Don said...

The Impoundment Control Act clearly specifies the steps President Obama is required to undertake should circumstances prevent the proper execution of appropriated funds.

2 U.S.C. 683 provides that whenever the President determines that all or part of any budget authority will not be required to carry out the full objectives or scope of programs for which it is provided or that such budget authority should be rescinded for fiscal policy or other reasons (including the termination of authorized projects or activities for which budget authority has been provided), or whenever all or part of budget authority provided for only one fiscal year is to be reserved from obligation for such fiscal year, the President shall transmit to both Houses of Congress a special message specifying -

(1) the amount of budget authority which he proposes to be rescinded or which is to be so reserved;
(2) any account, department, or establishment of the Government to which such budget authority is available for obligation, and the specific project or governmental functions involved;
(3) the reasons why the budget authority should be rescinded or is to be so reserved;


(4) to the maximum extent practicable, the estimated fiscal, economic, and budgetary effect of the proposed rescission or of the reservation; and
(5) all facts, circumstances, and considerations relating to or bearing upon the proposed rescission or the reservation and the decision to effect the proposed rescission or the reservation, and to the maximum extent practicable, the estimated effect of the proposed rescission or the reservation upon the objects, purposes, and programs for which the budget authority is provided.


2 U.S.C. 684 specifies a similar process for deferring budget authority.

Given the law, the 14th Amendment is irrelevant.

traditionalguy said...

If anyone sees the Homeland Security Camps as getting ready for the civil unrest caused by food riots when energy prices skyrocket and dollars are devalued, then I suggest that you do not use Facebook to create your digital dossier for the Google Secret Police.

dbp said...

Just to play the devil's advocate here but doesn't all federal spending emanate from congress?

Paying interest on the debt, cutting checks for social security and everything else are also due to bills passed. So which law takes precedence? Paying entitlement checks as required by legislation or not exceeding the debt limit which is also provided by law.

ricpic said...

We've reached the point where no matter what Urkle pulls he won't be impeached.

Fred4Pres said...

Lawrence Tribe should try some hiking in Yellowstone. Preferably with peanut butter smeared all over him.

Okay, that was mean. But stop being mendoucheous Larry!

Alex said...

Isn't Tribe an uber-left winger? IF we agree with him on this one point it means we have to swallow his entire ideology to be consistent!

Fred4Pres said...

Mick, a fox knows many little things, but a hedgehog knows one big thing.

You are a hedgehog! Mick for SCOTUS.

Alex said...

Or to make it simpler for garbage to understand. Because Hitler and I agree that the sky is blue does not mean I subscribe to national socialism. I know that's very difficult to understand.

Browndog said...

Given the law, the 14th Amendment is irrelevant.

Last week in Michigan we had:

Given the policy, the law is irrelavant.

escalation.....

edutcher said...

The Demos are getting desperate. This one's Chuckie Schumer's brainchild IIRC and they know they have to come up with some scheme before the election to make all of this go away, else people will start looking at Little Zero and start calling him, "Nero".

Ann Althouse said...

The Constitution is alive! Have you not heard? A seed has been found: the public debt clause. It has fabulous growth potential. It had life from the moment these legal geniuses inseminated that ovum of constitutional text. And you would snuff out their brilliant conception? Heartless! That is so lacking in... empathy.

This election will mark a full century that the Democrat Party has waged war on the Constitution.

Thank you, Madame, for taking a stand against the prostituton of the Supreme Law of the Land.

Mick said...

Fred4Pres said...
"Mick, a fox knows many little things, but a hedgehog knows one big thing.

You are a hedgehog! Mick for SCOTUS."


Why does a hedgehog know 1 big thing?

Fred4Pres said...

Mick, it is a reference to some scholar trying to classify writers. The fox and hedgehog reference come from greed fable. The idea caught on.

Trust me, you are a hedgehog. It is not an insult, it just means you are focused on one big issue.

Ann? She is a fox.

Fred4Pres said...

greek fable. My bad.

ricpic said...

Mendoucheous must be what a mendacious douche does. See? I'm smart. Not like everybody says...dumb...I'm smart and I want respec'!

Lucien said...

Wait. Did Alex make a Hitler reference that is not subject to Godwin's law?

Thorley Winston said...

Remember when all the lefties were predicting Bush would declare martial law and become a de facto dictator? Bush showed much more respect for the Constituion than Obama and his cohorts ever entertained. They're more than willing to let Obama follow Caesar's path. Just wait and see.

Do you mean declare himself emperor or the Ides of March?

roesch-voltaire said...

Clever ironic comment from Althouse on Trbe's not so boring discourse, but I am having difficulty following Herman's assertion the right wing hacks like Geithner want a race riot.

Mick said...

Fred4Pres said...
"Mick, it is a reference to some scholar trying to classify writers. The fox and hedgehog reference come from greed fable. The idea caught on.

Trust me, you are a hedgehog. It is not an insult, it just means you are focused on one big issue.

Ann? She is a fox."


Ah, now I get it. And yes, no one can penetrate the argument that Obama is ineligible because he was born British. It is irrefutable.

AF said...

The unspoken message here is: "I don't go in for novel, unfounded, and nakedly partisan interpretations of the Constitution -- like the challenge to the individual mandate."

Canuck said...

Tribe did everyone a great favor by demonstrating that there was no out here. Either the politicians make some hard decisions or the US will likely scare the global market place.

My own bet -- 1 out of 3 chance that the markets freak out in August. I don't see how a grand deal gets through the House.

Everyone fasten your seatbelts, and hold on to your hats (and maybe open up a bank account in Canada) -- it's going to be bumpy.

Revenant said...

I don't go in for novel, unfounded, and nakedly partisan interpretations of the Constitution -- like the challenge to the individual mandate.

I'm amused by the idea that it is "novel and unfounded" to think "Congress may regulate commerce between the several states" does NOT mean "Congress can force private citizens to buy stuff from corporations".

You statists are funny.

Carol_Herman said...

Canuck, I'd like to add to your bet that the EURO gets flushed down the toilet by the german's. And, then, in Brussels, heads explode.

For $300 francs in France, you'll be limited to Gallo.

Meanwhile, on Wall Street, and in the banks, people are losing jobs. And, the retail customers have not come back, yet. Or tomorrow.

We are having a ZOMBIE ECONOMY.

Not only are jobs lost ... but teenagers today ... and college grads ... are hoping for jobs at McDonalds.

Yes. People eat every day. But not everywhere. Those McDonald's jobs are golden.

Oh. And, you can't make commissions, anymore, by selling real estate. Or "doing" real estate loans.

The future for "easy money" is indeed bleak.

Fred4Pres said...

Mick said: Ah, now I get it. And yes, no one can penetrate the argument that Obama is ineligible because he was born British. It is irrefutable.

Damn straight. That is why you are such a hedgehog! Mick for SCOTUS!

gadfly said...

Larry Tribe and Prez Zero were buds at HLS. Barry worked as Tribe's assistant and participated in Tribe's plagiarism mill.

"I Am Larry Tribe," a Parody to the tune of "I Will Survive."

(Larry Tribe)

At first I was afraid
I was petrified
I had nothing new to write
I thought my muse had died

But then I opened up a book
And copied down the words I saw
My fatal flaw
And who would know I broke the law?

For nineteen years
I wasn’t caught
I made a killing on my books
Assigned in every class I taught

It would have never been revealed
The Weekly Standard wouldn’t see
I would still be at the top
If not for stupid Ogletree!

(Duncan Kennedy, praising Tribe)

He studied math, he studied law
And he’s the most prolific scholar
That the whole world ever saw!

He’s drafted foreign constitutions
He’s the president of Spain!
In the book they say he copied
He thanked Clinton aide Ron Klain

(Greek chorus, mocking Tribe)

Because he’s Tribe
He’s Larry Tribe
He’s not just Harvard’s best professor
He’s the smartest man alive!

No matter what the rumors say
He is the marshall of today
Because he’s Tribe
He’s Larry Tribe! (Hey hey)

(Tribe)

When the students choose their bundles
They all beg for me
For who else here mixes con law
With pornography?

And oh I spent so many years
Defending sodomy and choice
Penumbral rights
I took on all the liberal fights!

Bush versus Gore
That one I blew
My dreams of Justice Tribe are gone
Professor Tribe will have to do

It’s been my dream since I could sit
To wear the robe that’s black and long
But those old ladies in Miami
Got the whole election wrong!

(Elena Kagan, lauding Tribe)

He’s ten feet tall!
He learned to fly!
And though he’ll never be a Justice
He’s never gonna die

He is the sultan of Sudan
He is the closer for the Sox
And the legal fees he charges
Make him richer than Fort Knox!

(Members of Greek chorus lift Tribe on their shoulders, his legs straight and arms extended to his side, as if being crucified)

He’s Jesus Christ!
He’s Larry Tribe
Not just Harvard’s best professor
But the smartest man alive!

He’s got forty-one degrees
He speaks fluent Japanese
He’s Larry Tribe
He’s Larry Tribe!

Mickey said...

Congress has the power to coin money, but only in gold and silver, as evidenced by the Contracts Clause of Article 1 Section 10. No state shall "coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts;"

That means that a financial contract is not a contract unless it is made in gold and silver Coin. Only Congress is granted the power to regulate the value of gold and silver (ostensibly by regulating its supply at Fort Knox), but it is gold and silver nonetheless.

Ever since Nixon, the federal government's regulation of money has been unconstitutional.