The Constitutionality of Senator McConnell’s “Last-Choice Option” for Averting Default

Last week, as negotiations between the President and Congress over raising the debt ceiling faltered, Kentucky Senator Mitch McConnell offered what he called a “last-choice option” for averting the disastrous consequences of the federal government’s default on its financial obligations.  Under Senator McConnell’s proposal, the President would be given the authority to raise the debt ceiling, subject to his exercise of that power being overridden by Congress.

If that sounds backwards, it’s because you haven’t read the fine print.  To be sure, under Article I, Section 7, of the Constitution, Congress passes legislation, subject to Presidential signature or veto, not vice-versa.  However, as I shall explain in this column, McConnell’s plan appears to be structured to satisfy the Constitution.

Indeed, the more one examines the McConnell plan, the more it looks like it ought to be a first choice.

The McConnell Plan

As this column goes to press, Senator McConnell has not released any official text for his proposal.  Nonetheless, the outline is clear enough.  To begin, Congress would enact a law, to be signed by the President, which I shall call the McConnell Act.

The McConnell Act would authorize the President to unilaterally raise the debt ceiling in several increments, potentially by as much as $2.5 trillion before the 2012 election.  Under the McConnell Act, each time the President raised the debt ceiling, he would have to submit a plan to Congress including budget cuts that would more than offset the increases in the debt ceiling.  Congress would then get to vote yes or no on raising the debt ceiling.

But there’s a twist.  Under the McConnell Act, once the President acted, the debt ceiling would be raised unless either (1) a majority of each house of Congress voted to reject the President’s action, and the President signed the bill rejecting his own action, or (2) if the President vetoed a Congressional decision to reject his increase to the debt ceiling, two-thirds of each house then voted to override the veto.

Confused?  Don’t be.  That is all just a highly baroque way of disguising what the McConnell Act would really do, which is to grant to the President the power to raise the debt ceiling if he judges it sensible to do so.

The powers that Congress would be given to reject a debt-ceiling increase are simply the very powers to enact legislation that Congress already possesses under Section 7 of Article I.  If Congress were to reject a Presidential increase to the debt ceiling, then it would have to pass a law, either by obtaining the President’s signature or by overriding the President’s veto.

But, of course, Congress already has the power to revoke any authority it has previously granted the President by passing a new law that does just that.  So the real substance of the McConnell Act would be (1) the initial grant to the President of the power to unilaterally raise the debt ceiling and (2) the requirement that he propose spending cuts whenever he raises the debt ceiling.

Why Is the “McConnell Act” Structured the Way It Is?

Curious readers may now be asking themselves this question: If the McConnell Act is really just a grant of power plus a requirement that the President propose budget cuts, why does it include all the other provisions?  The answer lies in the domain of politics.

During the months leading up to the current impasse, many Republicans—especially those most closely affiliated with the Tea Party movement—pledged that they would not vote to raise the debt ceiling without a comprehensive deal to drastically scale back government spending.  With such a deal apparently out of reach, if these Republicans stick to their guns, there will not be majority support in the House for a bill raising the debt limit, and the government will run out of money, defaulting on its obligations for the first time in our history.

Fortunately, a sufficient number of Republicans realize that the consequences of a default would be so disastrous for the U.S. and the global economy that they must take steps to avert that possibility.  In other words, one hopes, a critical mass of Republicans in the end, and wisely, will not stick to their guns.

Thus, the McConnell Act is meant as a face-saving measure.  By voting in favor of the McConnell Act, even Tea Party Republicans will be able to say that they did not vote in favor of raising the debt limit.  Moreover, when President Obama comes back before them with a measure actually raising the debt limit, Republicans can then vote against that, and claim that they never voted to raise the debt limit.

Of course, there are enough Democratic votes in the Senate to defeat a rejection measure, and more than enough Democratic votes in both houses to sustain a Presidential veto.  Thus, a vote for the McConnell Act would be a de facto vote for raising the debt ceiling, but not a literal vote for that outcome.

The difficulty with the McConnell Act is that anybody who thinks about it for a while can see it for what it is.  Accordingly, Tea Party leaders have condemned Senator McConnell’s proposal as an abdication of responsibility.  Whether Senator McConnell’s proposal gets a hearing, much less becomes law, remains to be seen.  But as Default Day approaches, his “last-choice option” may soon become the only choice for those in Congress who do not want to drive the economy off a cliff.  At that point, it would only take a small number of Republicans to join with Democrats, for the McConnell Act to pass.

Suppose that the Act does pass.  Would it be constitutional?  I shall consider three possible objections.

Does the McConnell Plan Violate Article I, Section 7?

In a line of cases over the last three decades, the Supreme Court has insisted that when Congress legislates, it must precisely follow the procedure set forth in Article I, Section 7.  Interestingly, two of the leading precedents, Bowsher v. Synar in 1986, and Clinton v. New York in 1998, involved laws establishing procedures that were designed to provide fiscal discipline to a Congress that believed it could not discipline itself.  In both cases, the Court held that by going outside of the Article I, Section 7 process, Congress violated the Constitution.

Might the Article I, Section 7 rulings invalidate the proposed McConnell Act?  The short answer is no.  The long answer is, well, somewhat longer.  In Clinton v. New York, Congress attempted to give the President a line-item veto.  Writing in dissent, Justice Scalia explained why, in his view, the Congressional Act in question satisfied the Article I, Section 7 process.  He noted that Congress had long been understood to have the power to authorize the President to spend some, but not all, of the money it appropriated.  Justice Scalia said that despite its name, the Line Item Veto Act was really no more than a familiar grant of such power to spend funds up to a prescribed limit.  Nonetheless, the majority thought that the Act went too far.

Assuming someone could be found with standing to bring a lawsuit, might a contemporary Court majority say that the McConnell Act, like the Line-Item Veto Act, is a formal departure from the Article I, Section 7 procedure, and thus invalid notwithstanding its functional equivalence?

I think that possibility is extremely remote.  Unless Senator McConnell and his staff were to act with utter carelessness in reducing his proposal to a bill, the procedures contemplated in the McConnell Act could be structured as both the formal and the functional equivalent of Article I, Section 7.

Does the McConnell Act Violate the Non-Delegation Doctrine?

The McConnell Act could also be attacked on the ground that it gives to (or “delegates to,” in the parlance of constitutional law) the President a power that the Constitution assigns to the Congress—namely, the power “to borrow money on the credit of the United States.”  This argument, too, would almost certainly fail.

After all, Congress has already delegated to the Executive Branch the power to borrow money.  Federal statutes authorize the Executive to tax, to spend, and to borrow money to make up the shortfall between revenues and obligations.  Congress was under no obligation to enact a debt ceiling in the first place, and if Congress were simply to repeal the debt ceiling, the President would have the authority to borrow on the credit of the United States in any amount sufficient to meet current obligations.

But perhaps the whole practice of giving the President (and other officials in the Executive Branch) power to make fundamentally legislative decisions—like when and how much to borrow money—is unconstitutional in itself.  In the 1930s, the Supreme Court attempted to rein in the New Deal by saying just that.  Congress, the Court held on two separate occasions, could assign to the Executive the task of filling in the details of its policy choices but could not delegate its legislative function wholesale.

In the modern era, however, the so-called “non-delegation doctrine” is essentially moribund.  Although the Court periodically repeats the formal requirement that Congress can only delegate power to the President when it provides an “intelligible principle” for the President to follow, in practice, just about anything goes.

Thus, the non-delegation doctrine is, in fact if not in theory, no obstacle to congressional delegation to the President of authority to borrow money or raise the debt ceiling.

An Obscure Provision: Article II, Section 3

Interestingly, the strongest argument for finding a constitutional flaw in the proposed McConnell Act may be rooted in a fairly obscure provision, Article II, Section 3.  In relevant part, it provides that the President “shall from time to time . . . recommend to [Congress’s] consideration such measures as he shall judge necessary and expedient.”

The McConnell Act would require the President to propose budget cuts whenever he raised the debt ceiling.  In so doing, it would not leave the decision of when to recommend consideration of a measure to the President’s discretionary judgment, as set forth by the Constitution.  Would it be invalid on this ground?

I suspect that the right answer is no.  Much would depend on how the McConnell Act will be officially worded, but it should not be difficult to craft a requirement that the President come forward with something other than an official proposal for legislation.  If one thought that to be a merely formal distinction, then the obligation could be placed on some other Executive Branch official, like the Secretary of the Treasury, so as not to create even the hint of a conflict with Article II, Section 3.

Furthermore, suppose the President thought that the obligation to propose spending cuts was unconstitutional.  Prudence would suggest that the proper course would be for him to comply nonetheless, but to assert that he was doing so voluntarily.  That is how presidents from the early Republic into the twenty-first century have responded to subpoenas they deemed to be encroachments on the separation of powers, and there is no reason to think that the same approach could not be adapted to a requirement of proposed spending cuts.

In any event, in the extremely unlikely event that a court were to somehow find the President’s obligation to propose budget cuts unconstitutional, a severability clause in the McConnell Act would ensure that such a ruling would leave the President’s authority to raise the debt ceiling intact.

Thus, the proposed McConnell Act would not be held unconstitutional.  If the votes could be found to pass it, then Senator McConnell would deserve the gratitude of the nation and the world for a face-saving, economy-saving and constitutional legislative maneuver.

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