Congress and Congress alone is granted the power ‘to borrow money on the credit of the United States.’ Yes, but who's paying attention?
For what its worth...
Obama does whatever he wants with or without Constitutional authority and nobody in the Congress holds him accountable. Sounds to me like we no longer have a Constitution... At what point shall we say that our country no longer exists? I say we have already passed that point; the American people just have not woke up yet. ~ Norman E. Hooben
Don't miss the video at the bottom of this page.
Source for the following: The American
Debt and the Constitution
Congress and Congress alone is granted the power ‘to borrow money on the credit of the United States.’ Can Congress delegate that power to the president and restrain its own ability to take the power back?
President Obama
often treats the Constitution as, at best, an annoyance.
When the
Senate’s power to advise and consent to nominations (Article II, Section 2) was
likely to derail appointments Obama wanted to make to the National Labor
Relations Board, he used his power (provided by the same section of the
Constitution) to make recess appointments to put his people on that board.
But the Senate
was not in recess according to its own rules and according to the Constitution,
which states (Article I, Section 5) that neither house may adjourn for more
than three days without the consent of the other. No such consent had been
sought or received.
If this naked
power grab is sustained (it’s currently before the D.C. Circuit Court of
Appeals), then the Senate’s power to advise and consent is essentially
nullified. The president could declare the Senate in recess if it took a lunch
break and appoint whomever he pleased to whatever office he pleased.
There are
certain parts of Obamacare that that law declares unrepealable, despite the
fact that it is an inescapable principle that what one Congress, president, or
Supreme Court has the power to do, a future Congress, president, or Supreme
Court can undo. Otherwise, they would effectively be amending the Constitution
without following the procedures for doing so, as laid out in Article V. They
would thus nullify the power of the states to prevent an amendment unless
three-fourths of them agree to it.
One of the
president’s demands for avoiding the fiscal cliff is that Congress give him the
power to raise the debt ceiling, subject only to a two-thirds vote in each
house to override him.
While it is
hard to imagine Congress willingly surrendering so basic a power to the
executive branch, I wonder under what authority it could do so. Congress and
Congress alone is granted the power “to borrow money on the credit of the United
States” (Article I, Section 8). Can Congress delegate that power to the
president and restrain its own ability to take the power back?
The prohibition
against delegating powers goes all the way back to John Locke’s Second
Treatise on Civil Government, published in 1690. “When the people have
said,” he wrote, “We will submit to rules, and be govern'd by Laws made by such
Men, and in such Forms, no Body else can say other Men shall make Laws for
them; nor can the people be bound by any Laws but such as are Enacted by those,
whom they have Chosen, and Authorised to make Laws for them.”
To be sure, the
Supreme Court has long distinguished between “important” legislation and mere
“details.” In 1890, the Tariff Act of that year empowered the president to
reinstitute tariffs that Congress eliminated if he thought the countries so
benefitted did not reciprocate properly. The Court ruled in Field v. Clark that
Congress was not delegating legislative power to set tariffs, but merely
empowering the president to act as an agent for Congress.
In 1989, the
Court ruled in Mistretta v. United States that in this ever increasingly
complicated and technological world, “Congress simply cannot do its job absent
an ability to delegate power under broad general directives…. Accordingly, this
Court has deemed it ‘constitutionally sufficient if Congress clearly delineates
the general policy, the public agency which is to apply it, and the boundaries
of this delegated authority.’” Thus, for instance, the Food and Drug
Administration is empowered to make highly technical rules regarding the
licensing of drugs.
But that
doctrine does not apply here, for raising the debt limit is a simple matter, a
mere matter of one number instead of another number. And the Constitution,
unequivocally, grants that power to Congress and to Congress alone.
The way this
proposal would work, as far as I can understand the convoluted, isn’t-politics-wonderful?
idea, is that when the debt ceiling is within $100 billion of being hit, the
president would ask for a higher debt ceiling. Congress could approve or
disapprove of that request by joint resolution, and, if it disapproved, the
president would veto the joint resolution and go ahead and raise the debt
ceiling unless his veto was overridden.
But how does
that square with the constitutional requirement that only Congress can borrow
money? Congress will have formally voted to disapprove the new borrowing, but
the president will have the power to borrow it anyway. If that isn’t delegating
the power to borrow money to the president, contrary to the explicit dictates
of the Constitution, what on earth would be?
James Madison,
call your office.
John Steele Gordon has written several
books on business and financial history, the latest of which is the revised
edition of Hamilton's Blessing: The
Extraordinary Life and Times of Our National Debt.
FURTHER
READING: Gordon also writes “The Scariest Day of My Life,”
“Churchill and the Power of Words,”
and “George Orwell, Call Your Office.”
Norman J. Ornstein thinks “Obama Should Force Recess Appointment Fight.”
Michael Barone says “Obama's 1-Man Rule Thumbs Nose at
Founders.” Steve Conover discusses “How to Fix the Debt Ceiling (A Bigger
Threat Than the Fiscal Cliff).”
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If this doesn't wake you up, nothing willl!
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