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Debt and the Constitution

Thursday, December 13, 2012

Congress and Congress alone is granted the power ‘to borrow money on the credit of the United States.’ Can Congress delegate that power to the president and restrain its own ability to take the power back?

President Obama often treats the Constitution as, at best, an annoyance.

When the Senate’s power to advise and consent to nominations (Article II, Section 2) was likely to derail appointments Obama wanted to make to the National Labor Relations Board, he used his power (provided by the same section of the Constitution) to make recess appointments to put his people on that board.

But the Senate was not in recess according to its own rules and according to the Constitution, which states (Article I, Section 5) that neither house may adjourn for more than three days without the consent of the other. No such consent had been sought or received.

If this naked power grab is sustained (it’s currently before the D.C. Circuit Court of Appeals), then the Senate’s power to advise and consent is essentially nullified. The president could declare the Senate in recess if it took a lunch break and appoint whomever he pleased to whatever office he pleased.

There are certain parts of Obamacare that that law declares unrepealable, despite the fact that it is an inescapable principle that what one Congress, president, or Supreme Court has the power to do, a future Congress, president, or Supreme Court can undo. Otherwise, they would effectively be amending the Constitution without following the procedures for doing so, as laid out in Article V. They would thus nullify the power of the states to prevent an amendment unless three-fourths of them agree to it.

One of the president’s demands for avoiding the fiscal cliff is that Congress give him the power to raise the debt ceiling, subject only to a two-thirds vote in each house to override him.

While it is hard to imagine Congress willingly surrendering so basic a power to the executive branch, I wonder under what authority it could do so. Congress and Congress alone is granted the power “to borrow money on the credit of the United States” (Article I, Section 8). Can Congress delegate that power to the president and restrain its own ability to take the power back?

If this naked power grab is sustained, then the Senate’s power to advise and consent is essentially nullified.

The prohibition against delegating powers goes all the way back to John Locke’s Second Treatise on Civil Government, published in 1690. “When the people have said,” he wrote, “We will submit to rules, and be govern'd by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them.”

To be sure, the Supreme Court has long distinguished between “important” legislation and mere “details.” In 1890, the Tariff Act of that year empowered the president to reinstitute tariffs that Congress eliminated if he thought the countries so benefitted did not reciprocate properly. The Court ruled in Field v. Clark that Congress was not delegating legislative power to set tariffs, but merely empowering the president to act as an agent for Congress.

In 1989, the Court ruled in Mistretta v. United States that in this ever increasingly complicated and technological world, “Congress simply cannot do its job absent an ability to delegate power under broad general directives…. Accordingly, this Court has deemed it ‘constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.’” Thus, for instance, the Food and Drug Administration is empowered to make highly technical rules regarding the licensing of drugs.

But that doctrine does not apply here, for raising the debt limit is a simple matter, a mere matter of one number instead of another number. And the Constitution, unequivocally, grants that power to Congress and to Congress alone.

The way this proposal would work, as far as I can understand the convoluted, isn’t-politics-wonderful? idea, is that when the debt ceiling is within $100 billion of being hit, the president would ask for a higher debt ceiling. Congress could approve or disapprove of that request by joint resolution, and, if it disapproved, the president would veto the joint resolution and go ahead and raise the debt ceiling unless his veto was overridden.

But how does that square with the constitutional requirement that only Congress can borrow money? Congress will have formally voted to disapprove the new borrowing, but the president will have the power to borrow it anyway. If that isn’t delegating the power to borrow money to the president, contrary to the explicit dictates of the Constitution, what on earth would be?

James Madison, call your office.

John Steele Gordon has written several books on business and financial history, the latest of which is the revised edition of Hamilton's Blessing: The Extraordinary Life and Times of Our National Debt.

FURTHER READING: Gordon also writes “The Scariest Day of My Life,” “Churchill and the Power of Words,” and “George Orwell, Call Your Office.” Norman J. Ornstein thinks “Obama Should Force Recess Appointment Fight.” Michael Barone says “Obama's 1-Man Rule Thumbs Nose at Founders.” Steve Conover discusses “How to Fix the Debt Ceiling (A Bigger Threat Than the Fiscal Cliff).”

Image by Dianna Ingram / Bergman Group

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