McConnell’s Debt Cap Deal Is Probably Unconstitutional
Earlier today Senator Mitch McConnell announced what he said would be a last-resort plan to avert a government shut down if Democrats and Republicans can’t come to an agreement to raise the national debt cap. The deal would basically give Obama the power to raise the debt cap unless Congress either agrees to his spending cuts proposal or overrides his veto with a 2/3′s vote.
In other words, this gives Democrats an opening to get a debt cap hike with no strings attached by doing nothing more than stonewalling Republicans.
But at Reason, Tim Cavanaugh points out that it’s no more constitutional for Congress to hand off its budgeting authority to the executive branch than it is for the executive branch to take it:
There is no constitutional authority for the legislative branch to surrender its clearly delineated duty to write bills for raising revenue and borrow money on the credit of the United States.
Treasury Secretary Tim Geithner recently employed a clever but easily falsifiable argument, which cites Section 4 of the 14th Amendment to claim that the president can override the separation of powers.
I dismantled this argument last week. On Friday, the highly regarded law professor Laurence Tribe rebuttedGeithner’s suggestion that the administration was considering the “Section 4” or “constitutional” option and also provided a humiliating disproof of Geithner’s subsequent denial that he had made the suggestion. (Note that once again the labeling of a political initiative “constitutional” is a indicates that it is in fact unconstitutional.)
McConnell’s enthusiasm for this unconstitutional gimmick is disheartening, but it does not change the law. Congress has no more right to give up its authority than the president has to confiscate it.
This bad idea needs to be put back on the shelf.Tags: constitution, debt cap, deficits, mitch mcconnell, national debt