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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Jon Huntsman Refuses to Rule Out Impeachment Over Libya

Ben Johnson, The White House Watch

Here is a measure of both this movement’s effectiveness and Barack Obama’s stark, brazen criminality: Even the RINOs are talking impeachment.

In Rochester, New Hampshire, on Monday morning, former Utah governor and Obama’s one-time ambassador to China Jon Huntsman told a citizen that Obama’s war in Libya may be an impeachable offense. ABC News posted the following transcript of the exchange between Huntsman and the “voter”:

Voter: You mentioned Libya, and you mentioned the Constitution a couple of times. The president has decided to make Congress irrelevant, go around Congress, not — not go to Congress and ask for whether permission to go to war for — with, with Libya. He takes, what he thought, a UN resolution as his mandate to be able to go to war in Libya, do you think that’s unconstitutional in what he’s doing in Libya right now?

Huntsman: Well, last I looked the UN was not our Constitution. We ought to recognize who’s responsible for declaring war and giving the approval for these kinds of things, and get back to the basics of who should be driving these decisions.

Voter: What should Congress be doing in the fact that he went around Congress and he’s, he’s not abiding to the War Powers Act?

Huntsman: I think, I think Congress is, is in a mild uproar about it.

Voter: It’s very mild.

Huntsman: I have a fundamental problem, generally, I mean beyond this decision, just with the decision that has been made to get involved, in Libya, in a tribal country, when we have no definable interest at stake, we have no exit strategy. Look in Afghanistan, you want to get involved in tribal government? How hard it is to extricate yourself once you’ve gotten involved? Let history be your guide. Thank you.

Voter: Do you think it’s impeachable?

Huntsman: I’ll let Congress make that decision.

The mainstream media, flexing its sagging muscles, tried to turn Huntsman’s words into a bigger scandal than the president’s unconstitutional war itself. To his credit, when pushed for a clarification, Huntsman replied, “Congress should do whatever Congress chooses to do.”

As proof of Republican “extremism,” that is pretty weak stuff. Uber-Democrat Jerrold Nadler has compared Obama to a king, a dictator, and “an absolute monarch” precisely over launching an unauthorized war — not in a barbecue pit in someone’s backyard but from the floor of the House. But the media have a love affair with Huntsman, the liberal Republican who supports homosexual civil unions and the debt deal. In their skewed world, Huntsman is John McCain-lite, the “straight-talking” candidate who tells the GOP base what it does not want to hear. To media talking heads, this is a dog whistle that, if “even” Huntsman refuses to “rule out” impeachment, then far-Right Tea Party “insanity” must have infected the entire party.

Thus, the media quoted Democratic operative Ty Matsdorf, who fumed “it’s sad to see Jon Huntsman abandon his convictions for a chance to appease the rabid right-wing base by refusing to rule out impeachment.”

Of course, as a private citizen, Huntsman is not in any position to “rule out” anything. As he properly noted, that is Congress’ job. Yet this tempest-in-a-teapot is a triumph for Matsdorf’s employer, American Bridge 21st Century, which ABC News describes as a “Super PAC,” and which captured the “damning” video. This anonymously funded 501(c)(4) opposition group was founded by Media Matters head David Brock, a major recipient of George Soros’ money. The secretive group has….

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Video: Bachmann Would Impeach Obama “Within Seconds” of 14th Amendment Scheme

Feigning Powerlessness to Retain Power

William J. Olson, FloydReports.com

There once was a time that elected leaders wanted to be seen as powerful to gain the confidence of their constituents. But many House Republicans, who now have in their hands total power to end runaway government once and for all, are feigning powerlessness.

These House Republicans claim to be just one-third of the legislative process, unable to achieve anything useful without compromise and a bipartisan consensus. They grouse that the Democrats in the Senate and President Obama are forcing them to settle for what they can get in exchange for an inevitable and necessary increase in the debt limit. They claim to need even greater electoral victories in 2012 before they can stop the spending.

The truth is that House Republicans already hold all the cards. The debt ceiling is already fixed in law, and will remain fixed unless they capitulate. Rather than just saying no to an increase in the debt limit which would end deficit spending, the GOP has developed “Cut, Cap, and Balance” which it sells as a principled proposal. Yet, with CC&B, the House Republicans propose to end the deficit spending by the curious method of increasing the national debt by $2.4 trillion (almost 17 percent) to $16.7 trillion.

In increasing the debt ceiling, the House Republicans leaders are doing what comes naturally. The House leadership historically has not wanted to stop spending — with entitlements like Medicare Part D they have used our own money to buy our votes just like the Democrats. The motivation behind CC&B is not about cutting current spending, capping future spending, or balancing the budget — it’s about what it’s always been about — the politics of reelection.

It could be that the House Republicans are acting out of fear that in holding fast to principle they would not be seen as being “responsible” in the eyes of the media and Wall Street….

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Frum Tells GOP to Raise Debt Ceiling — To Spare Obama Impeachment

Ben Johnson, The White House Watch

For most of his term, Barack Obama has been flirting with impeachment like Bill Clinton at a sorority on open bar night, but he may be set to go too far even by Washington’s standards. Administration officials suggested if Congress does not raise the debt ceiling, the president may (wrongly) invoke the 14th Amendment to force the nation to borrow money. Last Tuesday Rep. Tim Scott, R-SC, said such an overreach of executive power would be “an impeachable act,” and the next day Texas Republican Pete Olson said Scott is “not a lonely voice.” Although Timothy Geithner backed down by week’s end, it is not clear that his scheme — or the equally unconstitutional compromise Mitch McConnell offered — will not rise again, provoking a constitutional crisis. Even David Frum, the most assertive voice of Republican liberalization, has concluded House Republicans will at least rumble about impeaching Obama if he blatantly violates the Constitution. Flummoxed at the possibility, he has advised Republicans to shut up and raise the debt ceiling to prevent Obama from having to commit an impeachable offense.

Frum proffered his bizarre advice in an article published on his eponymous FrumForum entitled, “Can the Debt Crisis Lead to Impeachment?”

Frum correctly noted, “The debt-ceiling crisis is growing into an impending constitutional crisis.” He is far from alone in assessing the severity of Obama’s threatened actions. Stan Collender wrote last Tuesday, “A number of people I communicated with this past week thought that the president invoking the 14th Amendment to justify federal borrowing would lead to impeachment proceedings in the House, even if there is little chance that the Senate would ever vote to convict.” Georgetown Law School professor Louis Michael Seidman, who supports the president’s right to unilaterally borrow money in theory, has warned, “There would be a constitutional crisis.” Matthew Vadum of The American Spectator agreed this would be one of Obama’s many impeachable offenses.

Frum conceded….

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