THE BLOG
07/15/2011 10:20 pm ET Updated Sep 14, 2011

McConnell Plan Unconstitutional... Or Unnecessary

Minority Leader Mitch McConnell (R-KY) has proposed a Rube Goldberg-esque debt ceiling plan that, as its core, enables the president to raise the debt ceiling. The president is given the authority to raise the debt-ceiling, Congress will vote to disapprove, and the president can raise the ceiling by vetoing the disapproval.

Strangely, after McConnell had capitulated the day before, Majority Leader Harry Reid (D-NV) thought this was an idea worth exploring and offered a $1-1.5 trillion cuts-only spending provision to accompany it.

There has been much discussion about whether section 4 of the Fourteenth Amendment that reads in relevant part, "the validity of the public debt of the United States, authorized by law... shall not be questioned" renders the debt ceiling itself unconstitutional, providing the president not just the power, but the duty, to pay all the country's financial obligations, from revenues and by issuing additional debt if necessary.

Professor Laurence Tribe of Harvard Law School wrote an op-ed piece for the New York Times explaining that that is wrong: the Constitution grants only Congress the power to "borrow money on the credit of the United States".

If Professor Tribe is correct, then McConnell's proposal to cede that Congressional power to the president is itself unconstitutional for the same reason that the line-item veto was ruled unconstitutional. Congress does not have the power to cede its power to the executive branch.

The situations could not be more alike. The president has the Constitutional power to veto legislation, and the Constitutional power (and duty) to pay the country's debts. But, the Supreme Court held that providing the president a line-item veto ceded the power of Congress to make the law to the president. In this case the president has the authority and duty to pay our country's obligations, but Congress's ceding him the power to set the debt-ceiling is transferring a power of Congress to the president.

If the Constitution does not give the president the power to set the debt-ceiling, McConnell's bill that cedes that Congressional power is unconstitutional.

Professor Tribe may be wrong. There may be stronger arguments than he presented that presidents do indeed have the power, and duty, to pay the country's debts and thus the debt-ceiling is itself unconstitutional.

In that case, the McConnell bill is unnecessary. The president can act; he does not need any authority from Congress to do so, and he does not have to submit himself to McConnell's infantile games.

No one can state with certainty whether Professor Tribe's view would prevail at the Supreme Court. Hence, both the McConnell bill and the president acting alone would cause great uncertainty. In both cases, any adverse ruling would require unwinding all the transactions that had previously occurred during the time the case were pending. [As small footnote to history, Rudy Guiliani's New York City brought the line-item veto case to Court because President Clinton had axed money for Medicaid payments in New York and Guiliani wanted them restored. When the line-item veto was declared unconstitutional, New York City got its money].

Hence, the McConnell approach provides no way out for members of Congress to avoid their responsibility. They either have to raise the ceiling or not. They have to do it without any proviso (a "clean" bill), or with whatever mix of spending cuts, tax spending cuts, and tax revenues they determine.

But, they cannot use the McConnell strategy to cede Congressional power to the president.

So, Mitchie, Johnny and Ricky, it is back to your sandboxes.