The Budget Control Act Of 2011 Violates Constitutional Order

Herbert W. Titus and William J. Olson,


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.

The 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 separately.

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 bill….

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Obama’s March of Folly

Dr. Marvin J. Folkertsma,

The budget deficits from the first two years of the Obama administration are of sufficient magnitude to spring Dr. “Billions and Billions” Carl Sagan from his grave. Sagan could sue for copyright infringement for misuse of astronomical numbers.

On second thought, the figures now being bandied about are in the trillions, which no doubt would send the venerable atheist skulking back, perhaps muttering something about the “unsustainability” of it all.

Sagan would not be alone. Multi-trillion dollar deficits that generate debt obligations in the hundreds of trillions of dollars cannot continue even in the short run, at least not without that Fifth Horseman of Apocalypse—picture Darth Vader toting a wheel barrow filled with worthless script—showing up to hiss questions about the insanity of those who led America on its “March of Folly.”

Barbara Tuchman wondered the same thing in a book published with that name, in which she probed the mentalities and policies of political leaders who led their countries to destruction—and here’s the kicker—fully aware of what they were doing but not willing to stop themselves from doing it. More specifically, averred Tuchman, to qualify as “folly” a policy….

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Medi-Scare, Take 3 Million

Michael Reagan,

The current furor over the national budget is ample proof of the fact that federal budgets should be completed in time and based on reality, and not based on welfare-state politics.

Instead, Congress keeps kicking the can down the road by enacting so-called CRs (Continuing Resolutions) that have become nothing more than legislation that allows Congress to enact all the legislation they could not get through standing on their own.

Example: the infamous Boland Amendments (1982 and 1984), which while outlawing assistance to the Contras fighting the leftist Nicaraguan government, at the same time allowed assistance to them for what was called “other purposes.”

That’s called “weasel wording.”

Let’s face facts. The government of the United States of America is broke — flat broke. We are up to our ears in debt, thanks to Congresses that spent money that wasn’t there on programs not needed, but created to buy votes with the voters’ money, piling a mountain of debt on our children and grandchildren.

My father, President Reagan, fought the battle of the budget by finding areas of agreement with Congress, and went on from there to hammer out a budget.

Budget Committee Chairman Rep. Paul Ryan, R-WI, has offered what he calls a “roadmap for the future,” which attempts to deal with the looming fiscal and economic crisis created by the ever-burgeoning federal spending on health care.

His roadmap would, in the words of Heritage Foundation experts Robert Moffit and Kathryn Nix, “reduce the deficit, allow Medicare to become truly sustainable, establish equity and efficiency in the federal tax treatment of health insurance and improve access to health care for middle-class and low income families.”

While Washington burns, however, Nancy Pelosi, Harry Reid, and President Obama continue to play the legislative fiddle as did Nero when Rome was afire….

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Paul’s Path to Prosperity

Susan Stamper Brown

If we really care about our children’s future, now is the time for Americans on both sides of the aisle to cast aside their political aspirations long enough to carry on an adult conversation about debt reduction and spending cuts.

Now is also the time to remind ourselves why Washington is still discussing the 2011 budget this late in the year. We are here today because Democrats, controlling all three branches of government last year, failed to pass a budget – because they were too busy spending borrowed money.

Nothing has changed this year. Senate Democrats continue playing monopoly with our children’s future while our president remains preoccupied with his perpetual re-election campaign expecting House Republicans to cower in the face of this insurmountable problem. But, they did not. Instead, they embraced this arduous task to save America from the sort of financial destruction that George Soros has spent a lifetime exploiting.

As a result of this courageous effort, Rep. Paul Ryan, R-WI, formally presented the 2012 Republican budget proposal – and progressives came out of the cracks like cockroaches in the presence of insecticide launching personal attacks, ill-informed assumptions, and infantile scare tactics suggesting the proposal will steal away seniors’ Medicare and reduce them to a diet of dog-food, just to survive. House Minority Leader Nancy Pelosi, D-CA, said the Republican budget is “a path to poverty” that will force seniors to starve….

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Cartoon of the Day: The Budget Reichstag Fire