The Debt Ceiling Debate and the Constitution: A Call for Caution

JURIST Contributing Editor Benjamin Davis of the University of Toledo College of Law, joined by JURIST Guest Columnists Michael Duff of the University of Wyoming College of Law, Craig Jackson of Texas Southern University Thurgood Marshall School of Law and Leland Ware of the University of Delaware, say that the recent proposal to allow the president to raise the debt ceiling without a congressional vote will increase uncertainty and violate the separation of powers...
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In the most recent development in the debt ceiling debate between the two parties in Congress, Senate Minority Leader Mitch McConnell has floated a plan to get out of the impasse. While the details are fluid, the essence of his proposal appears to be:

1) Congress would authorize the president to raise the debt limit by as much as $2.5 trillion in three installments. The first, an increase of $700 billion, would come immediately. The next two, worth $900 billion each, would come this fall and some time next summer.

2) On each occasion, the president would be required to submit to Congress an explicit request for an increase, along with a menu of proposed spending cuts equal to the requested increase. The submission of the president's first request would automatically raise the debt limit by $100 billion to give the Treasury Department breathing room while Congress considers the request.

3) Lawmakers would then have 15 days to pass a resolution of disapproval, giving them an opportunity to go on record against raising the debt ceiling. The president could veto the resolution, and the debt limit would then rise, provided the veto could not be overridden.

McConnell's strategy makes no provision for the required spending cut proposal to be enacted. Aides said lawmakers could pick and choose from the president's list when they put together appropriations bills in a separate process. While McConnell's tactical inventiveness is clever, it is an open question as to whether it is in line with the separation of powers.

The first step, authorizing the president to raise the debt limit, appears to be a departure from the past in which Congress itself raised the debt limit. The second step has the debt limit automatically rise by $100 billion by the submission of a requested increase, again without congressional action. The third step foresees a vote within 15 days of disapproval. In the absence of such a vote of disapproval within the 15 days, it is unclear whether the debt ceiling is raised or not or by what amount. If there is such a vote of disapproval, the president can veto it. If two-thirds of both houses of Congress fail to vote to override the veto, the debt limit rises by $900 billion without congressional action to alter the legislation setting the debt ceiling.

What is clear under all three steps is that Congress itself is not raising the debt ceiling limit as it has traditionally done, but instead the president becomes the fulcrum for the debt ceiling increases. Coupled with these increases will be a growing uncertainty as to whether the debt ceiling has in fact been properly increased.

Article I, Section 1 of the Constitution places the legislative power with Congress. Article I, Section 8 gives Congress the power to tax and spend and to borrow money on the credit of the United States. At the heart of this legislative power is the power to budget and authorize debt. While attacks on legislation based on the non-delegation doctrine do not generally succeed, one does wonder whether the compromise amounts to a congressional abdication to the president or a failure to give legislative definition of the scope of the president's power. While this point would not be dispositive, is there really an "intelligible principle" guiding the shift of authority to the president for raising the debt limit in this convoluted manner? The evidence so far makes it clear that this approach is being considered solely based on political calculations.

Moreover, comparing this proposed structure to a simple congressional vote, one sees a shift of power to the president that may harken a further imbalance in the separation of powers. The first three steps call for the president to propose various spending decreases to Congress at the same time that the president seeks the debt ceiling increases. The spending cut proposals are without any particular effect as the subsequent mandated congressional action is with regard to the debt ceiling and not the spending cuts. Would these proposed spending cuts amount to a backdoor kind of line item veto? On the one hand, the budgeting power remains with Congress, on the other, the presidential initiative creates an ad hoc budgeting and authorization process outside of standard budgetary procedures. What of spending authorized by Congress but targeted on the list of spending cuts submitted by the president? One concern is whether these listed cuts have the effect of suspending or calling the appropriations into question, another shift of power to the president over appropriations that should have the effect of law.

In the president's exercise of discretion in this arena, is there any meaningful guidance provided under this plan by Congress? It is unclear what principles will guide the president at each step in the process and whether Congress will channel presidential authority in a meaningful way. If the president is being given guidance, what happens if a president wishes to seek a debt ceiling increase without making a proposal of cuts? Does the McConnell proposal—cutting the other way—impinge on the Article II, Section 3 power to recommend such measures as the president shall judge necessary and expedient?

While some may view this as a more palatable solution than the Fourteenth Amendment approach, proponents of which argue that debt ceiling legislation in itself is unconstitutional, those watching this process will no doubt compare it with past debt ceiling debates. Even the resolution of the 1995-1996 budget crisis was more elegant, with a series of congressional authorizations of particular types of debt and ultimately a debt limit increase.

The uncertainties in the manner in which the McConnell process works, and the question of whether it shifts too much power between the president and Congress, will cause greater uncertainty over the next 18 months. This uncertainty will continue to impact investment decisions and the pace of the recovery. It is apparent that some politicians may feel they have backed themselves into a corner and are looking for an exit. However, these political calculations, by persons who purport to venerate the Constitution, require more than this convoluted, questionable approach.

This is not about the members of Congress, it is about the country. It is about making sure that on August 3 social security checks go out to those who have paid into the system, and that the US, with its special role in the world, is seen to conduct itself in an orderly manner. All parties involved in this debate should think carefully about whether this process, if enacted, would withstand a court challenge. All involved must keep it simple, rather than creating a new monster with unintended consequences which we may all come to regret the next time this issue comes to the fore.

Benjamin Davis is an assistant professor of law at the University of Toledo College of Law. He has served as legal counsel for the International Court of Arbitration of the International Chamber of Commerce. He is also the creator of fast-track international commercial arbitration and the International Competitions for Online Dispute Resolution. Davis is a frequent JURIST contributor.

Michael Duff is an associate professor of law at the University of Wyoming College of Law. He teaches classes in administrative and labor law. He also directs the law school's academic support program. Duff focuses his research on collective workplace rights and issues arising under the National Labor Relations Act.

Craig Jackson is a professor of law at Texas Southern University Thurgood Marshall School of Law. He teaches and researches on constitutional law after 9/11, First Amendment law and international law.

Leland Ware is the Louis L. Redding Chair and Professor for the Study of Law & Public Policy at the University of Delaware. His research interests focus on civil rights and employment law, issues which he has written extensively about.

Suggested citation: Benjamin Davis, Michael Duff, Craig Jackson & Leland Ware, The Debt Ceiling Debate and the Constitution: A Call for Caution, JURIST - Forum, July 16, 2011, http://jurist.org/forum/2011/07/davis-duff-ware-debt-ceiling.php.




This article was prepared for publication by Jonathan Cohen, the head of JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org

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