A week ago Washington was abuzz with the seemingly nifty idea that Section Four of the Fourteenth Amendment could empower the President to borrow money above the debt ceiling, without congressional authorization. Now the idea seems to be dead. Not only has Secretary Geithner’s lawyer repudiated the suggestion, but the Secretary has denied he ever even floated the idea.
Part of the reason this idea lost favor is that it was wrong on the merits. But it helped – maybe even decisively – that Professor Laurence Tribe, professor at Harvard Law School and well-known Obama enthusiast, stood up and publicly denounced the faulty constitutional interpretation on which it rested, in an op-ed in the New York Times.
Professor Tribe deserves praise for this. It is not easy for a prominent intellectual to pull the rug out from under a political scheme of his allies, especially in a high-stakes partisan confrontation like the debt ceiling talks in Washington, where the Administration would dearly love to neutralize the leverage the debt ceiling gives Congress to force budgetary reform. This is what distinguishes a scholar from a hack: the willingness to analyze a question dispassionately and tell the truth even when it is politically inconvenient. via volokh.com