ACRU

McConnell’s Plan B Debt-Ceiling Compromise Is (Almost) Unconstitutional (Bad Policy, Too!)

This column by ACRU Senior Legal Analyst Ken Klukowski was published July 18, 2011 on The Washington Examiner website.

Senate Minority Leader Mitch McConnell’s proposed debt-ceiling compromise could be a disaster. Not only is it bad policy–it also pushes the edge of the constitutional envelope.

The non-conservative Senate Republican-proposed compromise with the White House would raise the debt ceiling and give President Obama power to raise it higher down the road.

First, it’s bad policy to transfer borrowing power to the president. The Framers deliberately wanted to constrain executive spending power, which is why the Constitution requires that every dollar spent by the government must first be appropriated by Congress, and separately specifies that only Congress can borrow money.

Second, it’s bad politics to let Obama off the hook by not having to keep fighting for additional debt increases before Election Day in 2012. This suggests many Republicans are also looking for cover to continue profligate spending without accountability.

But thirdly, the Senate proposal borders on being unconstitutional.

In 1983, if an immigration judge ordered a foreigner deported from this country, federal law allowed the attorney general to suspend deportation proceedings. Federal statute then provided that Congress could override the attorney general’s decision by majority vote.

In INS v. Chadha, the Supreme Court struck down the override provision. In doing so, the Court held that all “legislative veto” provisions are unconstitutional.

The Court made clear that it was striking down more than the legislative-veto provision in the Immigration and Nationality Act. Other statutes contained similar provisions, and the justices invalidated all legislative veto provisions on the books.

Some are characterizing the stop-spending provision in the proposed McConnell plan as a legislative veto, saying that the debt increases would automatically kick unless Congress passes a two-thirds resolution of disapproval. They are correct in arguing that such a plan would be unconstitutional.

But that’s not exactly what the Senate is proposing.

In order to avoid violating the Court’s precedent, the Senate plan builds in several intermediate steps. A commission will recommend a package of tax hikes and spending cuts to Obama.

(Sound familiar? Because we all know that presidential debt commissions are spectacular successes.) Obama will consider its advice, then send some version of that package to Congress as a request.

When Obama makes that request, the debt ceiling will automatically increase by hundreds of billions–for a total of $2.4 trillion–unless Congress passes a resolution of disapproval.

But if Obama vetoes the resolution, then the debt increase goes into effect anyway. Congress can only overcome that veto with a two-thirds override vote, which is of course a political impossibility.

Consequently, Obama can get his debt increase, while members of Congress can plead with their constituents that they did everything possible to stop it.

The Supreme Court has never dealt with a law doing what McConnell is proposing. At first blush, it appears to violate the separation of powers in exactly the same way as Chadha.

But in reality it is a clever way to sidestep the Court’s prohibition. This later resolution of disapproval would act like rescission legislation to modify this “grand compromise” by canceling one of its debt-ceiling hikes.

But while this shifting of responsibility violates the spirit of the Appropriations Clause, the Borrowing Clause, and the Spending Clause of the Constitution, on such issues the courts elevate form over substance.

Although you can make a plausible argument that this cancellation provision is unconstitutional, courts would likely uphold it as fulfilling the Constitution’s step-by-step requirement for new legislation, which can supersede previous legislation.

The debt situation is bad enough already. Congress should reject purported solutions that carry the added problem of violating the Constitution, in spirit if not in letter.