A Brief Constitutional Lesson for Congresscritters… Particularly those from Kentucky…

United States Constitution
Article 1, Section 7

All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

The issuance of debt is a revenue raising measure. The “debt ceiling” is, in fact, legislation initiated in the House of Representatives, which authorizes the executive branch to issue debt through the treasury (and by extension the federal reserve), up to a specific limit.

This “debt ceiling” and authorization of debt issuance; allows the executive branch to raise revenue in a constitutionally legitimate way; because the revenue is raised under the auspices of specific authorization by the house or representatives.

Neither the Senate, nor the House, acting separately or together; has the authority or ability to delegate this exclusive power of the house, to any other entity, including the president. In fact, it would be a clear violation of the principle of separation of powers to do so.

That is all.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

  • http://iboudreau.tumblr.com iboudreau

    Yeah, okay. But Section 4 of the 14th Amendment says this:

    “Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.”

  • http://www.nickschweitzer.net Nick

    @iboudrea – Section 4 does not in any way modify Article 1, Section 7. It’s sole purpose was to clarify that the United States Federal Government (the North) would not accept liability for any debts incurred by the Confederacy during the Civil War. It does not alter the language which gives sole responsibility for authorizing that debt to the Congress.

    As was ruled when the Line Item Veto was struck down, Congress may not pass a law which modifies a power specifically delegated to it. Only an Amendment may do that.

  • tkc

    Errr, if this is directed at Mitch McConnell, the last time I checked he was a Republican. Not that there is much difference these days.

  • http://anarchangel.blogspot.com Chris

    Yes, but for some reason… gee I wonder what that might be… all the democrats support the idea and all the republicans oppose it.

  • http://anarchangel.blogspot.com Chris

    However, you’re right, it is an ambiguous title… I’ll change it.

  • http://valiberaltarian.typepad.com/blog/ VALiberaltarian

    I’m sorry, but no.

    Not that I dislike your attempt to turn to the Constitution for guidance during these difficult times, but I think you push for an interpretation that has never been widely accepted.

    The issuance of debt is not a revenue raising matter and legislation raising the debt limit does not have to originate in the House of Representatives. In both 2002 and 2004 the Congress raised the debt limit with legislation that originated in the Senate. Those are the most recent examples but I’m sure there are more.

    In fact, no one even claims a tradition of the House originating debt limit increases. There is a question of if appropriations, which spend revenue, have to originate in the House or not. The likely interpretation is that they don’t have to originate in the House, but by tradition the House has refused to consider any appropriation bill originating in the Senate. I don’t know how long this has been going on, but it’s there.

    Your entire post really rests on a logic that just isn’t there, either in the way things are commonly done or even in the Constitution.

    And Nick is wrong. The 14th Amendment wasn’t just about Confederate debt. It was about ensuring that if the Southerners took control of Congress with doughface allies they couldn’t just ignore the debt the Union had built up during the war.

    The country is going to hit a ceiling in terms of how much more it can go into debt to fund programs authorized by Congress. In the big picture there are three options available to any government in this situation. Raise more revenue, cut spending, or borrow more.

    The Constitution specifically grants the House of Representatives the sole ability to originate raising of revenue. So it’s clearly not an option to have Obama unilaterally raise taxes. It’s so clearly not an option even the most crazy of Democrats aren’t talking about it.

    So the option for Obama is to either cut spending, without Congressional approval, or borrow more, without Congressional approval. Damned if you do, damned if you don’t. No where in the Constitution or in current law is there any guidance to what ought to be done. I think the 14th Amendment clearly prevents Obama from deciding to cut interest payments. So that’s spoken for. But anything else? It’s all on the table.

    As for McConnell’s idea I think it’s within the framework of Congress delegating authority to the executive to execute the wishes of Congress. Don’t like it? Sure. But it’s constitutional.

  • Akston

    So Amendment 14, Section 5 has no bearing?

    “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

    There doesn’t seem to be a reference to the executive there.

  • JDV

    As VALiberaltarian noted, it would not truly be a revenue bill (taxes, duties, imposts, excises), so it’s not about in which chamber legislation must originate; it is, rather, that it be an act of Congress and not of the Executive. The 14th Amendment argument is a straw man. Yes, “the validity of the public debt shall not be questioned”, and this is true not only with regard to Civil War debt (which was the genesis of the clause), but also binding to this day on all debt “authorized by law”). I don’t think anyone has questioned whether the federal government must pay its debts; it must. But the 14th Amendment has nothing to do with how the issuance of new debt is Constitutionally done…read on.

    The whole conversation about defaulting is a political ruse, which the media have ignorantly or knowingly proliferated. What is in question is the ability to pay for everything else the government does, without borrowing beyond what Congress currently authorizes. Imagine your own credit card is maxed out. You can make the minimum payment due for the foreseeable future, but those payments are not enough to bump your balance below your credit limit, so you can’t charge anything else. That means you have to pay cash for everything, but your cash flow is insufficient to pay for everything you want or need (that which Congress has appropriated). What do you do? Again, VALiberaltarian pointed out the options: you can ask for a raise or get a second job (raise more revenue…for the federal government, only Congress can do this); cut spending (either Congress can rescind previous appropriations or the Executive can tighten its belt without subverting the policy intent of Congress); or you can ask the bank to raise your credit card limit (raise the debt ceiling…this is where the arguments in this post fall apart).

    Article I, Section 8, grants exclusively to the Congress the power to borrow money on the credit of the United States. The President cannot unilaterally disregard the Congressionally imposed debt ceiling by ordering the Treasury to issue more debt. In fact, in my opinion, that would amount to counterfeiting the securities of the United States, for which Congress also has the power to punish (Art. I, Sec. 8, again).

    For you or I in these circumstances, we would clearly see that our personal financial affairs are profoundly fouled up. It’s time to sell the vacation home, the third car, and the boat; forego the filet mignon and lobster; cut back from 600 to 300 cable channels, etc. For many in Congress, though, they can’t seem to find anything they can do without, so their obvious choices are to raise taxes and to tell the bank bump up their credit limit. For others in Congress, they don’t think that much of what government does is necessary, so their obvious choice is to cut spending substantially.

    What Congress eventually does is a matter of today’s political dynamic. What should be understood by all, though, is that it is the Congress, not the President, which must do SOMETHING.

  • tkc

    Regardless of the constitutionality of McConnell’s plan it is outright bad policy.
    “On each occasion, Obama would be required to submit to Congress an explicit request for an increase, along with a menu of proposed spending cuts equal to the requested increase. The submission of the president’s first request would automatically raise the debt limit by $100 billion to give the Treasury Department breathing room while Congress considers the request.

    Lawmakers would then have 15 days to pass a resolution of disapproval, giving them an opportunity to go on record against raising the debt ceiling. But Obama could veto the resolution, and the debt limit would then rise, providing that at least 34 Democratic senators stood firm in upholding his veto.”

    Obama would ask for his debt limit increase with meaningless cuts in spending. On queue, the GOP will shoot it down and their disapproval will go to the Whitehouse where Obama will veto and demagogue the crap out of it with his usual third world class warfare tripe (abandoning elderly, starving children, etc…). The result: the debt limit gets raised and the GOP don’t even get a talking point out of it. The taxpayers get the tab.
    They’re asking the fiscally irresponsible to be responsible.
    Not. Gonna. Happen.
    Obama and the Dems will gladly veto any effort to restrict their redistributive agenda.

    source for quote: http://www.washingtonpost.com/business/economy/debt-talks-show-growing-gap-between-white-house-gop/2011/07/12/gIQAbKuiAI_story_1.html

  • JDV

    I concur with tkc. McConnell’s plan is Constitutional, but at the same time it is colossally bad public policy and political gamesmanship at its ugliest.

  • http://valiberaltarian.typepad.com/blog/ VALiberaltarian

    JDV, thank you for reminding me not only of the Constitutional requirement that revenue bills begin in the House, but the clear Constitutional language granting Congress authority to borrow. So really the only option left to Obama is the discretion in the hands of the executive in deciding what programs to fund and what programs now to fund, with the additional 14th Amendment requirement that he has to pay interest on the debt itself. Although some progressive bloggers have noted that there’s enough existing law in place to allow him potentially use seigniorage as a way out . . . Crazy!