Earlier this week, Sen. Chris Coons (D-DE) revealed that several senators are studying whether the debt ceiling may be unconstitutional, thus giving President Obama the ability to declare it so and save the nation from a crippling economic disaster if Republicans fail to raise our debt limit. An interview with Treasury Secretary Tim Geithner suggests that the Administration may already be considering this option. Last month, Geitner suggested to Politico’s Mike Allen that the Debt Ceiling violates the Fourteenth Amendment:
ALLEN: You’ve been clear about the risk in not acting on the debt ceiling. Do you think Members of Congress get that?
GEITHNER: I think the leadership absolutely understands it. I think the vast bulk of Congress understands it completely. I think there are some people that are pretending not to understand it, who think there is leverage for them in threatening a default.
I don’t understand it as a negotiating position. I mean, really, think about it, you’re going to say that, uh, can I read you the Fourteenth Amendment. . . . “the validity of the public debt of the United States authorized by law including debts incurred for the payments of pensions and bounties for services in suppressing insurrection and rebellion”—this is the important thing—“shall not be questioned.” So, as a negotiating strategy, you’re going to go say, “if you don’t do things my way, I’m going to force the United States to default—not pay the legacy of bills accumulated by my predecessors in Congress?” It’s not a credible negotiating strategy, and it’s not going to happen.
Geithner may want to rethink his claim that congressional leaders understand the danger of a debt default, now that GOP leaders walked away from negotiations over the debt ceiling to protect tax breaks for the very richest Americans. But his citation to the Fourteenth Amendment is a very encouraging sign that the White House is seriously exploring whether the Constitution will save America’s economy from the GOP’s extortionary tactics.
As Yale Law Professor Jack Balkin explains, the “validity of the public debt” language was inserted into the Fourteenth Amendment entirely to prevent the kind of hostage taking Republicans are now engaged in:
The original purpose of Section Four, which is reflected in its text, was to prevent political disruption and party wrangling over the public debt following the Civil War. However, the language of the Amendment went beyond this particular historical concern. It was stated in broad terms in order to prevent future majorities in Congress from repudiating the federal debt to gain political advantage, to seek political revenge, or to try to disavow previous financial obligations because of changed policy priorities. . . .
The threat of defaulting on government obligations is a powerful weapon, especially in a complex, interconnected world economy. Devoted partisans can use it to disrupt government, to roil ordinary politics, to undermine policies they do not like, even to seek political revenge. Section Four was placed in the Constitution to remove this weapon from ordinary politics.
Hopefully, the GOP’s threat to destroy the entire national economy will prove to be a bluff, and the debt ceiling will be raised the old fashioned way. If it is not, however, Geithner’s statement is a hopeful sign that the White House is exploring all available options to save America from catastrophe.