Last night I listened to law professor Jeffrey Rosen on "Hardball" interpret President Obama's 14th Amendment option as "uninterpretable." There's just no question that the president has the Constitutional right to invoke the Amendent's Section 4 to avert a debt crisis, testified the George Washington University legal scholar.
And there's the twist: legal scholar -- which means that Rosen's scholarly uninterpretability is about as genuinely uninterpretable as an economic theory is to a roomful of economists. In other words, what Rosen meant by "uninterpretable" is that that is his interpretation.
It was only to be expected that right-wing "legal scholars" would instantly hurl themselves into frenzied denunciations of the Constitutional option -- perhaps it was they whom the Dickensian Mr. Bumble had in mind when he observed that "the law is a ass" -- but now comes Obama's former Harvard law professor, Laurence Tribe, to delight the right and inconvenience Rosen with the Constitution's Article I, Section 8: Only "The Congress shall have Power ... To borrow money on the credit of the United States."
Which lies in indirect conflict with the 14th Amendment's now singularly faddish Section 4: that Obama can exercise final presidential authority in averting a debt crisis, since "the validity of the public debt of the United States, authorized by law ... shall not be questioned." Why a conflict? Explains Tribe:
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.
Tribe then expands on his Constitutional objection with a practical consideration:
[E]ven if [the 14th Amendment arguments] were persuasive, they would not resolve the crisis. Once 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. This risk, in turn, would result in a steep increase in interest rates because investors would lose confidence.
In the end, Tribe transcends his own profession by reminding us that the debt issue's resolution lies fundamentally not in a Supreme Court ruling (God help us), but in political pragmatism (and here, strikingly, one sees Tribe's intellectual influence on Obama): Forget the legalisms, advises Tribe, for this is a matter that properly lies on "the political drawing board."
The manner in which Tribe elaborated on this concept is virtually identical to the way Obama described it at his "Twitter conference." Tribe:
Only political courage and compromise, coupled with adherence to traditions that call upon Congress to fulfill its unique constitutional duty, can avert an impending crisis.
Of course none of this compels the conclusion that Obama would reject the 14th Amendment option; after all, he's had his Treasury secretary floating the idea since May. It does, however, seem to darken the prospects of Obama's ever deploying it. And I'm with Tribe, and likely Obama: This is a political, not a legal, question -- and in the political arena it must be resolved.