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12/17/2012

John Steele Gordon: Debt and the Constitution
Michael Ramsey

At AEI's The American website, John Steele Gordon in Debt and the Constitution asks:

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?

I agree with some of Professor Gordon's other comments about President Obama and executive power, but I don't understand this argument at all.  I assume Congress could simply repeal the debt ceiling and authorize the President to borrow on behalf of the United States to the extent there is a shortfall between revenues and expenditures (both of which are controlled by Congress).  That surely wouldn't run afoul of the "limits" on delegation in the American Trucking case, but even if that case was wrongly decided (as it may well have been, as an original matter), granting borrowing authority tied to congressionally controlled parameters would seem consistent with most originalist ideas of a permissible delegation.  Indeed, I'm not sure it would be properly understood as a delegation at all, as opposed to a presidential execution of Congress' directions regarding revenues and spending.  (This is a very different issue from the question whether the President can violate the existing debt ceiling without congressional authorization).  I don't fully understand the details of the current proposals (to the extent there are any), but if a complete repeal of the ceiling is constitutional I don't know why some lesser variation would be problematic.

(Via Richard Reinsch at Liberty Law Blog).