The Budget Control Act Of 2011 Violates Constitutional Order

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.

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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Video: Sarah Palin, McConnell Plan is “White Flag,” “Makes No Sense”

McConnell Prepares to Betray Tea Party, Aid Obama’s Debt Ceiling Power Grab

Ben Johnson, The White House Watch


(Presidential historian Doug Wead says, if Obama raises the debt limit on his own, he is “absolutely” impeachable.)

Even as freshman Congressmen passed the Cut, Cap, and Balance proposal last night, Senate Minority Leader Mitch McConnell quietly planned to sell them out. Insiders report McConnell is going through the motions of voting on the House measure but has invested his energy in cutting a deal with Democrats and give Barack Obama unconstitutional and near-dictatorial powers to raise the debt ceiling.

The Hill newspaper exposed the betrayal:

Publicly, House Speaker John Boehner (R-Ohio) and Senate Republican leader Mitch McConnell (Ky.) have made votes on the Cut, Cap and Balance Act and a balanced-budget amendment their priority this week.

But GOP aides say the leaders are already looking past those votes to a potential deal with Democrats to raise the debt limit before an Aug. 2 deadline and spare Republican lawmakers from a political backlash.

“McConnell is going to let cut, cap and balance have its vote and then immediately move to plan B,” said a GOP aide in reference to the fallback debt plan McConnell is negotiating with Senate Majority Leader Harry Reid (D-Nev.).

McConnell’s “Plan B” would allow Barack Obama to unilaterally raise the debt ceiling in three portions over the next year. Only a supermajority of more than two-thirds of Congressmen could override him.

The plan is the apparent preference of the inside-the-Beltway crowd, as they have already launched one of their typical campaigns to make it appear “centrist.” On Monday….

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McConnell’s Plan Would Give Obama Dictatorial Powers

Ben Johnson, The White House Watch


Mitch McConnell explains his “Plan B” on the debt ceiling.

Barack Obama has made it a purpose of his presidency to bypass Congress and implement his agenda through executive powers. Yesterday, Senate Minority leader Mitch McConnell proposed giving him a helping hand.

Just last week, administration officials floated the idea of (mis)using the 14th Amendment to raise the debt ceiling apart from Congress. McConnell, visibly nervous after Obama threatened to withhold Social Security checks and military pay if Congress does not raise the debt ceiling, concocted a convoluted compromise that would give Obama precisely the power to ignore Congress under most circumstances.

McConnell’s backup plan would have Obama tell Congress when he would add to public indebtedness, and only a veto-proof majority of both houses of Congress could tell him no. Obama would split his nearly $2.5 trillion debt request into three parts, which he would propose separately between now and next June. Each time, his request would become law unless Congress denied the authorization by a super-majority of more than two-thirds.

Incredibly, an opposition leader in the legislative branch has introduced a bill that allows a president to appropriate funds automatically unless Congress vetoes him.

Although McConnell publicly…

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Wrong Boehner; Obama is Breaking the Law Right Now

by Ben Johnson, The White House Watch

Only in the liberal media can a weak entreaty to obey the law be considered an act of political warfare. The media have portrayed House Speaker John Boehner’s letter to Barack Obama, merely asking the president for another legal explanation for his war-by-decree in Libya, as “ratcheting up the pressure.” The New York Times correctly noted, “it is not clear if [Boehner’s Congressional] resolution and follow-up letter have any teeth.” It is actually a five-day pass to keep breaking the law.

The text of Boehner’s letter reads, “it would appear that in five days, the Administration will be in violation of the War Powers Resolution unless it asks for and receives authorization from Congress or withdraws all U.S. troops and resources from the mission.” After blasting the president’s “refusal to comply with the basic tenets of the War Powers Resolution,” Boehner invokes the Constitution – but not the section many legal scholars may have expected. Instead of noting what our Founding document has to say about the power to declare war, Boehner writes: “The Constitution requires the President to ‘take Care that the Laws be faithfully executed,’ and one of those laws is the War Powers Resolution, which requires an approving action by Congress or withdrawal within 90 days from the notification of a military operation.”

There are only four problems with Boehner’s letter: it’s wrong on the Constitution, it’s wrong on the law, it offers no consequences for wrongdoing, and it came 30 days too late. Obama is in violation of the War Powers Resolution right now.

The Constitution or Cronyism?

Democratic Congressman Brad Sherman of California gave a more accurate assessment nearly a month ago when he said Obama is “shredding the Constitution.” Today, the House passed an amendment Sherman authored to….

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