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Wednesday, July 13, 2011

Constitutional Problems with the McConnell Plan on Debt

At Heritage, Rory Cooper writes of a plan by Senate Republican Leader Mitch McConnell:
Under McConnell’s plan, President Obama would propose three incremental debt limit increases between now and the end of 2012. Congress could only vote to disapprove these requests, which President Obama could then veto. Without a 2/3 majority in Congress to override that veto, which is very unlikely, the debt limit increase would become automatic.
[T]his proposal raises several serious constitutional concerns. Depending on exactly how the legislative language is drafted, it well might violate the Bicameralism and Presentment Clauses for the making of law, the separation of powers regarding Congress’s control over the budget and spending, the legislative Recommendations Clause, and it might also be struck down as an attempt to grant the President the equivalent of a line-item veto. It is also unclear whether the unconstitutional portion would be struck down by the courts and severed from the rest of the statute (which would eliminate Congress’s ability to veto the cuts) or if the entire scheme would be struck down. But, at a minimum, the proposal is highly dubious as a matter of constitutional law.
Extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power. The Constitution established a national government with powers deemed to be adequate, as they have proved to be both in war and peace, but these powers of the national government are limited by the constitutional grants. Those who act under these grants are not at liberty to transcend the imposed limits because they believe that more or different power is necessary.

The Constitution provides that
"All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Art I, § 1.

And the Congress is authorized "To make all laws which shall be necessary and proper for carrying into execution" its general powers. Art. I, 8, par. 18.

The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested. We have repeatedly recognized the necessity of adapting legislation to complex conditions involving a host of details with which the national legislature cannot deal directly. We pointed out in the Panama Company case that the Constitution has never been regarded as denying to Congress the necessary resources of flexibility and practicality which will enable it to perform its function in laying down policies and establishing standards while leaving to selected instrumentalities the making of subordinate rules within prescribed limits, and the determination of facts to which the policy, as declared by the legislature, is to apply. But we said that the constant recognition of the necessity and validity of such provisions, and the wide range of administrative authority which has been developed by means of them, cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained.