Sunday, July 10, 2011

Treasury General Counsel Nixes Constitutional Challenge To Debt Limit

The General Counsel of the Treasury Department took the 14th Amendment off the table when he sent a letter to the NYT saying that the debt limit law is binding. Here is the text:
The New York Times
620 Eighth Avenue
New York, NY 10018

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.


George W. Madison
General Counsel

Posted in: Debt Limit

He doesn't clarify why it is a binding restraint. It could be that he doesn't think the debt limit is inconsistent with the 14th Amendment. Or, as was suggested in this article, it could be his opinion that the President cannot violate a law based on a non-court sanctioned determination that the law is Unconstitutional.

I happen to think that the second argument is the more likely, but certainly don't know. I reached that opinion because since 1803 the Supreme Court has made clear that the Courts alone have the power to declare laws Unconstitutional. While the President could order Treasury to issue new debt in violation of the debt limit and fight it out later in Court, I don't think he wants to risk the firestorm that would arise. He would get attacked by Democrats as well as Republicans for such an act and I suspect he feels that he has enough other issues on his plate.

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