The Very Bad McConnell Plan to Raise the Debt Limit Ceiling

by Pejman Yousefzadeh on July 13, 2011

It can perhaps best be described as offering the President the authority to not not raise the debt limit ceiling. Apart from the fact that this really ridiculous idea entails having Congressional Republicans give up any leverage that they may have in order to bring about a budget deal that may help alleviate the country’s long term fiscal problems (we have apparently gone from a grand bargain, to a mini-bargain, to a proposal that amounts to no bargain at all), I have to wonder about the plan’s constitutionality. I haven’t done much legal research on this issue, but off the top of my head, I have to wonder how it can be possible that Congress can delegate the ability to raise the borrowing limit to the President, and only check the President if two-thirds vote to block the proposal to raise the debt limit ceiling.

Congress is given the ability to borrow money on the credit of the United States, via Art. I, Sec. 8 of the Constitution. It is per this power that the Second Liberty Bond Act of 1917 (31 U.S.C. § 3101) was passed, establishing a debt limit ceiling. Essentially, under the McConnell plan, Congress is delegating its power to borrow money to the President, with Congress only able to stop him if two-thirds disapprove. How McConnell was able to come up with this plan in light of Art. I, Sec. 8 grant of borrowing power to Congress–and maintain a straight face in the process–is anyone’s guess.

Other portions of the Constitution may be violated as well by this plan, as pointed out here:

. . . Depending on exactly how the legislative language is drafted, it well might violate the Bicameralism and Presentment Clauses for the making of law, the separation of powers regarding Congress’s control over the budget and spending, the legislative Recommendations Clause, and it might also be struck down as an attempt to grant the President the equivalent of a line-item veto. It is also unclear whether the unconstitutional portion would be struck down by the courts and severed from the rest of the statute (which would eliminate Congress’s ability to veto the cuts) or if the entire scheme would be struck down. But, at a minimum, the proposal is highly dubious as a matter of constitutional law.

Quite so; the McConnell plan would allow the President to raise the debt limit ceiling in stages, and Congress would only be able to stop him with a resolution of disapproval that would require two-thirds of the House and Senate to agree. I can’t see how this would comply with the requirements listed in the Presentment Clause of the Constitution, and as mentioned above, I can’t see how this comports with Art. I, Sec. 8′s grant of power to Congress–and to Congress alone–to borrow money on the credit of the United States.

Even if we put aside the Constitutional issues, the McConnell plan is a really cowardly way to resolve the debt ceiling debate. It is being put forward because Representatives and Senators don’t want to have to vote on whether the debt limit ceiling should be increased, even though in their heart of hearts, the vast majority of them–Republican and Democrat–know that the debt limit ceiling needs to be increased in order to avoid financial calamity. Of course, it is the job of Representatives and Senators to vote on the issues of the day. That’s what they are paid to do, and while some of those votes may produce whining, tears, and table-pounding frustration regarding how very hard the job of a member of Congress is, that’s not a sufficient excuse for Congress to abrogate its responsibility to take those tough votes. It should surprise no one that members from both parties are latching–if tentatively–onto the McConnell proposal as a way to get them out of the debt limit ceiling dead-end in which they find themselves. The instinct for self-preservation appears to be alive and well in Congress. Too bad the instinct for responsibility appears to be all but dead.

  • Mark Buehner

    This is like the anti-Ryan budget and it deserves an immediate nomination for the acts of political cowardice award.  McConnell just basically went to war with Congressional Republicans and intends to leave them holding the bag on this deal. The political calculus is too smart by half (Americans dont care about all this ‘go on the record’ crap, they care about results and Obama will have his results he wanted and give up nothing at all), but what is worse is that it makes a ham-fisted political point at the expense of actually doing something in the best interest of the country.
    All Congress needed to do was pass a bill with the cuts they could come up with, send it to the senate and dare Reid and the President to let the country default. All the pressure would be on them. Now all the pressure is back on Republicans, all because this beltway lifer lost his nerve and probably decided he could pull off a brilliant coup de main where he looks like a statesman (always helps Republicans, right John McCain and Arlen Specter?), makes the president allegedly look bad, and perhaps most importantly knocks the tea-partiers down to size. What it will likely do is split the party and cause another round of primary infights and potentially a 3rd party candidate that will hand Obama the election.  In other words, no actual favorable results- but thats ok for a good ol boy like Mitchy, as long as he gets to keep his fancy seat and keep his friends in the pork trough what does he care?

  • Anonymous

    The supposed “Plan” has the triple benefit of giving the Obamacrats  everything they want, causing major political damage to republicans, and creating massive economic problems for the country in the long and short terms. 

  • sowing confusion

    It’s quite constitutional.  In INS v Chadha SCOTUS ruled that the Constitution requires Congress to pass identical legislation in both houses then present it to the President for his signing or veto, and then Congress can override the veto by a 2/3 majority in each house.

    This does that. The mechanism is as follows:

    Congress passes a bill raising the debt ceiling on condition that the President provide it a list of spending cuts. Presumably the President would sign the bill under threat of default.  However the bill also says that if both houses of Congres vote to reject the cuts after they are proposed, this bill rejecting the cuts goes to the President to be signed or vetoed.  Of course he will veto it.  Congress will be unable to muster veto-proof majorities so the debt ceiling will be raised.

    If I understand it correctly, both houses can debate and revise the cuts, so the resolution would be regular legisilation.  The House would pass the resolution of disapproval with its own cuts, fulfilling its role, and the Senate would not pass the cuts.  So it would never reach the President’s desk to be vetoed.

    Therefore the already approved debt ceiling would become law.

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