Michael Gaynor
Protege Obama raising the debt ceiling would be too audacious even for his former constitutional law professor
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By Michael Gaynor
July 12, 2011

Apparently Tribe still felt the need to explain fundamental constitutional law publicly to his sometimes audacious protege.

In 1987 first year law student Barack Obama met with Harvard constitutional law professor Lawrence Tribe. Reportedly, Tribe took Obama as one of his research assistants as a result of that meeting and then "shielded his dazzling new hire from the mundane assignments that such positions typically require, because he "didn't think of him as someone to send out on mechanical tasks of digging out all the cases" and instead "periodically g[o]t together [with him] sometimes taking strolls along the Charles River, to exchange lofty ideas about the relationship between law and society. Tribe said that he viewed Obama "much more as a colleague" than as a student and called him his "most amazing research assistant." See Justin Driver, "Obama's Law," New Republic (June 9, 2011), available at http://www.tnr.com/article/politics/magazine/89647/obama-legal-philosophy-laurence-tribe.

In July 2007 Tribe appeared in one of the first presidential campaign advertisements for then Senator Barack Obama, hoping to help bolster support in the primaries for his former student, whom he served as a campaign adviser. "It was inspiring," Tribe said in the ad, "absolutely inspiring to see someone as brilliant as Barack Obama, as successful, someone who could've written his ticket on Wall Street, take all of the talent and all of the learning and decide to devote it to the community and to making people's lives better." "I've been involved with him from the time he graduated from Harvard Law," Tribe said. "Barack is enormously mature, brilliant, and inspiring in his commitment to make people's lives better and to the American ideal in its best form." "He doesn't bring to mind the divisions in our society that we've seen over the past decades" and "represents the future in the best sense," according to Tribe. To those who warned that Obama lacked the experience to be president, Tribe insisted that "it's the quality rather than the quantity of experience that matters" and assured that "what you see with Barack is what you get. He is not a person who is carefully tacking to one side and then the other to attract the party base for the primary and then the center for the general election." To Tribe, Obama gave him the most sense of "hope and possibility" of a presidential candidate since John F. Kennedy ran in 1960. See Nathan C. Strauss, "Tribe Lends Support to Early Obama Iowa Push" (July 6, 2007), available at www.thecrimson.com/article/2007/7/6/tribe-lends-support-to-early-obama/.

On the eve of Election Day 2008, Tribe identified Barack Obama as "the most impressive and talented of the thousands of students I have been privileged to teach in nearly 40 years on the Harvard faculty" and one of "those in whom challenge stirs greatness, those who rise to challenge rather than letting it break their stride or spin their compass." See Peter F. Zhu, "Tribe Recalls Obama At HLS" (Nov.4, 2008), available at www.thecrimson.com/article/2008/11/4/tribe-recalls-obama-at-hls-on/.

In February 2010, Tribe was named a senior counselor for access to justice in the Obama Justice Department. See Carrie Johnson, "Prominent Harvard law professor joins Justice Department" (Feb. 26, 2010), available at http://www.washingtonpost.com/wp-dyn/content/article/2010/02/25/AR2010022505697.html.

Tribe now seems to be very concerned that President Obama may constitutionally overreach.

In a recent New York Times oped (www.nytimes.com/2011/07/08/opinion/08tribe.html?_r=1), Tribe acknowledged that the implicit threat of Treasury Secretary Timothy Geithner that the Obama administration would invoke the Fourteenth Amendment and raise the national debt limit is legal nonsense.

Tribe flatly stated that the notions that section 4 of the 14th Amendment, known as the public debt clause,either is sufficient to nullify the national debt ceiling or can be used to permit the president to borrow money without regard to the ceiling "provide the false hope of a legal answer that obviates the need for a real solution.

Section 4 of the Fourteenth Amendment states: "The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void."

Obviously inability or unwillingness to pay a debt does not render that deby invalid.

Tribe noted that the Supreme Court has addressed the public debt clause only once, in 1935, in Perry v. United States, and stated only that the clause confirmed the "fundamental principle" that Congress may not "alter or destroy" debts already incurred.

Tribe gently explained:

"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.

To those claiming that Obama may violate the statutory debt ceiling to prevent default, Tribe explained fundamental constitutional law as follows:

"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. Moreover, it is well established that the president's power drops to what Justice Robert H. Jackson called its 'lowest ebb' when exercised against the express will of Congress.

"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?"

In addition, Tribe noted that Obama ignoring the debt ceiling would not solve the problem, because "[o]nce the debt ceiling is breached, a legal cloud would hang over any newly issued bonds, because of the risk that the government might refuse to honor those debts as legitimate" and "[t]his risk, in turn, would result in a steep increase in interest rates because investors would lose confidence — a fiscal disaster that would cost the nation tens of billions of dollars."

Obama himself has not publicly commented on Secretary Geithner's unconstitutional threat.

That's hardly leadership.

Apparently Tribe still felt the need to explain fundamental constitutional law publicly to his sometimes audacious protege.

That's telling.

© Michael Gaynor

 

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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