Herbert W. Titus and William J. Olson,FloydReports.com
In a Constitutional Republic of the sort that we thought we had,the process
by which laws are made is at least as important as the laws that are enacted.
Our Constitution prescribes that law-making process in some detail,but those who
voted for the “Budget Control Act of 2011″(“BCA 2011″) were wholly unconcerned
about trampling upon required constitutional processes on the way to the nirvana
of “bi-partisan consensus “to avert a supposed crisis. At least two titles of
the bill now being rushed through Congress are unconstitutional.
First,the “Debt Ceiling Disapproval Process”in BCA 2011 Title III
unconstitutionally upends the legislative process.
Constitution’s Article I,Section 8,Clause 2 vests in Congress the power “to
borrow Money on the credit of the United States.”As two of America’s leading
constitutionalists,St. George Tucker and Joseph Story,observed,the power to
borrow money is “inseparably connected”with that of “raising a
revenue.”Thus,from the founding of the American republic through 1917,Congress
—vested with the power “to lay and collect taxes,duties and imposts,”—kept a
tight rein on borrowing,and authorized each individual debt issuance
To provide more flexibility to finance the United States involvement in World
War I,Congress established an aggregate limit,or ceiling,on the total amount of
bonds that could be issued. This gave birth to the congressional practice of
setting a limit on all federal debt. While Congress no longer approved each
individual debt issuance,it determined the upper limit above which borrowing was
not permitted. Thus,on February 12,2010,Congress set a debt ceiling of $14.294
trillion,which President Obama signed into law.
However,a different approach was used when BCA 2011 was signed into law on
August 2,2011. Title III of the Act reads the “Debt Ceiling Disapproval
Process.”Under this title Congress has transferred to the President the power to
“determine”that the debt ceiling is too low,and that further borrowing is
required to meet existing commitments,”subject only to congressional
“disapproval.”For the first time in American history the power to borrow money
on the credit of the United States has been disconnected from the power to raise
revenue. What St. George Tucker and Joseph Story stated were inseparable powers
have now by statute been separated.
Under the new process established by this bill,if the President determines,no
later than December 31,2011,that the nation’s debt is within $100 billion of the
existing debt limit and that further borrowing is required to meet existing
commitments,the debt limit automatically increases. The President need only to
certify to Congress that he has made the required determination. Once the
President acts,the Secretary of the Treasury may borrow $900 billion “subject to
the enactment of a joint resolution of disapproval enacted”by Congress.
But this is not all. Title III also provides that if Congress fails to
disapprove the debt ceiling increase in the amount of $900 billion,the President
may again certify to Congress that he has determined that the debt subject to
the new ceiling is within $100 billion and that further borrowing is required to
meet existing commitments. So the Secretary of Treasury is authorized to borrow
another $1.2 trillion. Indeed,the Secretary may borrow even more —up to $1.5
trillion if a proposed balanced budget amendment has been submitted to the
states for ratification. As was true of the first round of ceiling raising and
borrowing,the President and Secretary of the Treasury are constrained only by
the possibility of a congressional resolution of disapproval which,itself,is
subject to veto by the President.
By giving the President the authority to increase the debt ceiling and to
determine that borrowing is necessary to meet the nation’s commitments,this