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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.
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Second, the joint select committee on deficit reduction provision undermines the constitutionally established bicameral legislative process.
The Budget Control Act of 2011 establishes a joint select committee of 12 members, six from the House and six from the Senate. Three of the six House members are appointed by the Speaker of the House and three are appointed by the House minority leader. Three of the six Senate members are appointed by the majority leader and three by the leader of the minority.
Title IV of the Budget Control Act vests in that joint select committee the power to draft legislation to reduce the deficit by at least $1.5 trillion over the period of fiscal years 2012 to 2021.
Here, members of Congress yield their individual legislative duties and responsibilities to a "Super Congress" selected not by the people -- but by Republican and Democrat leaders.
How many of these Congressmen and Senators campaigned on the platform that they would be elected, get sworn in, and then obediently surrender the power their constituents vested in them to the very same Republican and Democrat leaders who have created the problems they were sent here to solve?
To facilitate passage of the joint committee's legislative proposals, Section 402 contains a number of procedural rules designed to expedite consideration of the joint committee recommendations. Generally, the rules require action by both houses no later than December 23, 2011, on a joint committee recommendation that must be submitted no later than December 9, 2011. Additionally, the section prohibits amendments to the proposed legislation and prescribes severe limits on the time for debate. In short the procedural rules dictate unity of action of a majority of each house to accelerate adoption of the deficit reductions recommended by the joint committee within a two-week period of time.
The Constitutional order is quite different. Article I, Section 1 vests the legislative power in a bicameral Congress composed of a House of Representatives and a Senate. The members of each body are elected in two very different manners. Each senator is elected by the vote of the people of an entire state, and each state has the same number of senators regardless of population. The members of the House are elected by the people in congressional districts divided into districts, each state being guaranteed at least one representative and the others allocated according to population.
The composition of each house then is deliberately designed by the Constitution to represent vastly different majorities. And for good reason. As the Supreme Court observed in I.N.S. v. Chadha, 462 U.S. 919, 949 (1983), "by providing that no law could take effect without the prescribed majority of the Members of both Houses, the Framers reemphasized their belief ... that legislation should not be enacted unless it has been carefully and fully considered by the Nation's elected officials."
The Budget Control Act of 2011 departs from that commitment vesting incredible power in the joint committee, virtually guaranteeing that deficit reduction legislation will be "carefully and fully considered," if at all, only by 6 of 100 elected senators and 6 of 435 elected representatives.
These are not matters of constitutional form without meaning -- the process was considered central to the founders.
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