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Thursday, August 4, 2011

The Budget Control Act Of 2011 Violates Constitutional Order

By Herbert W. Titus and William J. Olson

In a Constitutional Republic of the sort that we thought we had, the process by which laws are made is at least as important as the laws that are enacted.  Our Constitution prescribes that law-making process in some detail, but those who voted for the "Budget Control Act of 2011" ("BCA 2011") were wholly unconcerned about trampling upon required constitutional processes on the way to the nirvana of "bi-partisan consensus "to avert a supposed crisis.  At least two titles of the bill now being rushed through Congress are unconstitutional.  
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. 
Under the new process established by this bill, if the President determines, no later than December 31, 2011, that the nation's debt is within $100 billion of the existing debt limit and that further borrowing is required to meet existing commitments, the debt limit automatically increases.  The President need only to certify to Congress that he has made the required determination.  Once the President acts, the Secretary of the Treasury may borrow $900 billion "subject to the enactment of a joint resolution of disapproval enacted" by Congress. 
 But this is not all. Title III also provides that if Congress fails to disapprove the debt ceiling increase in the amount of $900 billion, the President may again certify to Congress that he has determined thatthe debt subject to the new ceiling is within $100 billion and that further borrowing is required to meet existing commitments.  So the Secretary of Treasury is authorized to borrow another $1.2 trillion.  Indeed, the Secretary may borrow even more -- up to $1.5 trillion if a proposed balanced budget amendment has been submitted to the states for ratification.  As was true of the first round of ceiling raising and borrowing, the President and Secretary of the Treasury are constrained only by the possibility of a congressional resolution of disapproval which, itself, is subject to veto by the President.
 By giving the President the authority to increase the debt ceiling and to determine that borrowing is necessary to meet the nation's commitments, this bill turns the legislative process on its head. According to Article I, Section 7, before an act can become a law, it must first be passed as a bill by the House of Representatives and the Senate.  Thus, any action taken to authorize the borrowing of money on the credit of the United States - whether such action is a formal bill or a vote or resolution -- must be initiated by Congress and, then, presented to the President for his veto or signature.  This bill creates what it calls a "Debt Ceiling Disapproval Process" whereby the constitutional process is reversed.  Instead of Congress's initiating the decision to borrow money, the President has the initiative.  Congress is relegated to the role of having to disapprove the President's decision to lift thedebt ceiling and authorize the Secretary of Treasury to do what the Constitution says only Congress may do -- borrow money on the credit of the United States. 
Instead of constitutional order, in which Congress presents a law authorizing the borrowing of money to the President to sign or veto, the President presents to the Congress his determination that more money is to be borrowed, subject to the acquiescence or veto of Congress.
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. 
In the debates on the need for a bicameral legislature, James Wilson warned:  "Is there a danger of a Legislative despotism?  Theory & practice both proclaim it.  If the legislative authority be not restrained, there can be neither liberty nor stability; and it can only be restrained by dividing it within itself, into distinct and independent branches."  
Even the last defender of monarchy among the founders, Alexander Hamilton, warned that to "accumulate, in a single body, all the most important prerogatives of sovereignty [would] entail upon our posterity one of the most execrable forms of government that human infatuation ever contrived."  
Thus, as the Supreme Court noted in Chadha, James Madison "point[ed] up the need to divide and disperse power in order to protect liberty":  "In republican government, legislative authority necessarily predominates.  The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and the common dependence on society will admit."  The Federalist, No. 51 (emphasis added).
The Budget Control Act of 2011 does just the opposite.  Instead of ensuring action by two "distinctive bodies," to be "exercised only after opportunity for full debate in separate settings," the Act truncates the deliberative process by shortening debate, excluding amendments, and commanding uniformity.  See Chadha, 462 U.S. at 951. 
Expedition was never the principal object of the legislative process created by the founders.  The object was to preserve limitations on the power of government in order to protect the liberties of the people.  Liberties can be lost when bad precedents are set in the atmosphere of crisis -- and crises can, and often are, manufactured.   Precedents established can be hard to overturn.  Rights lost can be hard to regain.  
 The 74-page Budget Control Act of 2011 was not written over the weekend.  Yet it was posted on the House Rules Committee website with no fanfare, only hours before it was to be voted upon, breaking the pledge of the House Republicans to provide at least 72-hours advance public notice.   
Contrived crisis, appeals to fear, emergency litigation, and suspension of Constitutional order -- these are the indicia of abuse of power, leading to tyranny. 
Herb Titus taught constitutional law for 26 years, concluding his academic career as founding Dean of Regent Law School.  Bill Olson served in three positions in the Reagan Administration.  They now practice constitutional law together, defending against government excess, at William J. Olson, P.C.  They can be reached at or

MWMandeville: Dan Youra sends us this smoking hot analysis of the "Budget Control Act of 2011", which will ever live in Infamy alongside Pearl Harbor and the U.S.S. Liberty. Many are pointing out that the "Council of 13", which should be discussed as the "Junta of 13", is an operation which is patterned somewhat after the Soviet Style Politburu (a small committee ends up totally displacing nominally democratic institutions and yields absolute power without restraints). Dan points out this is rather more like "Il Duce's" corporate fascism system (Musselini for the historically challenged or Orwellian deprived youth). Behind Il Duce (or Hitler) lie the Feudal Lords who hired them and supply their brainpower with people programmed to operate out of the correct Gestahlt or paradigms. Dan also points out how deviously orwellian the entire program is. Ostensibly the powers are there to cut spending but the program, in combination with all the national security powers, allows the President/Junta to spend anything anywhere for any purpose by simply dictate. It is a lot easier to bribe 12 people, obviously, than 545. These people are now so capable of broadsiding any fundamental aspect of the constitution, I suppose the time is not far away when they will feel emboldened enough to suspend elections at will, for reasons of national security. They will have to figure out how to buy off the media corps, though, because election spending is now by far the greatest source of income for the media. Below is Dan's post______________________________Michael,Here is an article [linked below] that exposes how the Junta just pirated the US ship of state with the passage of the Budget Control Act. Constitution be damned. Representative democracy be damned. A close reading reveals that it is not really the Gang of 12 that will finance the ship of state. It is the Jefe in the WH (and his Caballeros, as you call them) who just got the default power to keep raising the debt ceiling at his (their) whim, ad infinitum. The Control Act is the Golden Goose they needed to finance Obama Care, endless Stimuli, wars, whatever. No one has ever been given a bigger Birthday present than Obama just got for his 50th. To label this the 10 trillion dollar gift is to underestimate it. This is more like the 50+ trillion dollar present, when it is played out over time. This will keep the international Banksters well greased for many years to come.Herbert Titus and William Olson, the two guys who wrote this article, both eminent constitutional scholars, are seeing through the looking glass to what really hides on the other side of the Control Act. Too bad our representatives in Congress were in such a hurry to get home for summer vacation that they didn't read what is in the document they signed.A few QUOTES from the article [linked below]. You can read the entire article for the full analysis of the treasonous bill.At least two titles of the bill are unconstitutional. First, the "Debt Ceiling Disapproval Process" in BCA 2011 Title III unconstitutionally upends the legislative process. By giving the President the authority to increase the debt ceiling and to determine that borrowing is necessary to meet the nation's commitments, this bill turns the legislative process on its head. Instead of Congress's initiating the decision to borrow money, the President has the initiative. Congress is relegated to the role of having to disapprove the President's decision to lift the debt ceiling and authorize the Secretary of Treasury to do what the Constitution says only Congress may do -- borrow money on the credit of the United States. Instead of constitutional order, in which Congress presents a law authorizing the borrowing of money to the President to sign or veto, the President presents to the Congress his determination that more money is to be borrowed, subject to the acquiescence or veto of Congress.Second, the joint select committee on deficit reduction provision undermines the constitutionally established bicameral legislative process. Contrary to the constitutional powers to make laws vested in Congress, only 6 of 100 elected senators and 6 of 435 elected representatives will "carefully and fully consider" the bills.Remember in the early 90's there was the phrase, "It's the economy, stupid." Now, I'd offer, "It's the control, stupid." This is not a "Budget Act." It is a "Control Act." Someone stuck the word "Budget" in the title as a diversion, a smoke screen. This isn't about accounting, bookkeeping, number crunching. Forget budgets. This is about Mission Control, Ground Control. "It's the control panel, stupid." It is the keys to the vault. The 74 pages of this bill were not written on a whim over the weekend to "meet this crisis." These pages were sitting in a safe waiting for the fabricated crisis to mature to the point they could be trotted out and signed under duress the night before Congress's vacation, just like Obama Care was signed on Christmas Eve, so Congress could go home for some Christmas cheer, without having read that bill. This time they couldn't wait to go home and have a hot dog, so they voted for another bill they didn't read. Obama got 'em again. As their constituents read the bill and inform their congress people what the bill says, I think they may have second thoughts about their quick signatures.While the media debates whether the Tea Party won or lost, your Caballero buddies just picked up The Deed to America. They can keep refinancing this sucker, foreclose, sell off assets, whatever they want. The Constitution had given us, The People, a mechanism by which we elected our representatives and senators, to hold The Deed to the country, mortgage it and refinance it. The Control Act changed that. Our representatives, under fear of another Obamageddon Story, simply handed over the Deed. The Grand Canyon can be collateralized for a future loan from China and "We The People" have nothing to say about it. The Banksters you write about probably have The Deed over in Switzerland or somewhere right now and are celebrating the Federal Foreclosure of the United States. The Bankruptcy/Foreclosure wasn't that painful, was it? It all happened in the blink of an eye on the night before Congress's vacation. Obama was the closer. His Title Company handled the transaction. No need to deal with messy robo-signers, like the ones that messed up the foreclosure process for BofA, Chase and Wells Fargo. Obama created the ultimate credit card and flew off to his Birthday Party in Chicago. Most credit cards have spending limits. Not this one. He simply raises the limit a few more trillion dollars any time he needs to buy a few more unions or teachers unions.In the last couple years we saw Obama purchasing stock in General Motors. That was just a teaser. In the future, watch for full government expropriation of businesses, even industries. The right is worried about Obama's move to the left, toward socialism and communism. A few head fakes got them looking in the wrong direction. Now that he can bypass that troublesome and messy Congress with all its representational entanglements, he truly can create money by dictate, as he needs it (or, as his friends behind the curtain need it.) Obama is not the communist commissar. Duce has arrived. The Italian fascist model is closer to what is unfolding. It is no longer the ship of state. It is just The Ship. Oh, they'll still fly the stars and stripes over the mast to keep the masses misty eyed, but a sharp eye should be able to make out the Jolly Roger's cross bones shadowed in the red, white and blue.The Comments beneath the article by Titus and Olson are worth reading also to see how other eyes are seeing this.<>

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