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Mitch McConnell has proposed a new way to deal with the debt ceiling issue:

Under Mr. McConnell’s plan, Congress would pass legislation authorizing the president to request a total $2.5 trillion debt-limit increase in three stages—$700 billion by Aug. 2 followed later in the year by two $900 billion installments. The increases could take effect without congressional approval, but Congress could block it with a resolution of disapproval.

In general, under McConnell’s plan: (1) the President is required to propose the debt-limit increase; (2) Congress can respond with a “resolution of disapproval,” which requires a vote of a majority of each house; (3) the President can veto that resolution, which presumably he would; and (4) Congress can attempt to override that veto with a 2/3 supermajority in both houses.  The purpose of the plan is that Republicans can place the blame (some individuals find raising the debt ceiling unpopular) for raising the debt ceiling on the President, because there is no chance that 2/3 of both houses would vote against raising the debt ceiling.

Such a plan is likely unconstitutional under the Supreme Court’s decision in I.N.S. v. Chadha, 462 U.S. 919 (1983).


A. Chadha

In Chadha, Congress passed an Act which allowed the Immigration and Naturalization Service (INS) to suspend deportations of illegal aliens.  However, the Act further specified that Congress could reject the INS’s decision to suspend deportation, and that, to do so, either house of Congress merely needed to pass a resolution of disapproval, with a majority vote.

After Congress passed such a resolution of disapproval, the resolution, and Act, were challenged and eventually were reviewed by the Supreme Court.  The Court held that the Act was unconstitutional.

The Court wrote that, when one of the three branches of the government acts, it must act according to the procedures set forth in the Constitution. Importantly, the Constitution sets forth a specific procedure Congress must follow when it takes a legislative act, meaning doing something like passing a bill, but not simply making internal Congressional rules.

Specifically, when taking a legislative act, except in limited circumstances spelled out in the Constitution (such as impeachment), the Constitution only allows Congress to act through “bicameralism” and “presentment.”  “Bicameralism” means passage by both houses, and “presentment” means presenting the passed bill to the President for signature or veto.

In Chadha’s case, the Act allowed Congress to take a legislative act (passing a resolution of disapproval) without bicameralism or presentment, because either house could pass the resolution of disapproval, and the President didn’t get to sign or veto the resolution.  Thus, the Act was unconstitutional.

To dispel any argument that such a ruling would cause inefficiencies, the court explained, in one of my favorite Supreme Court lines of all time:

The choices we discern as having been made in the Constitutional Convention impose burdens on governmental processes that often seem clumsy, inefficient, even unworkable, but those hard choices were consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked. There is no support in the Constitution or decisions of this Court for the proposition that the cumbersomeness and delays often encountered in complying with explicit Constitutional standards may be avoided, either by the Congress or by the President. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.

I.N.S. v. Chadha, 462 U.S. 919, 959 (1983).


B. McConnell’s Plan

McConnell’s plan is slightly different than that in Chadha.  Unlike Chadha, it does not authorize a single house to take “legislative action.”  However, it does allow the President, as opposed to Congress, to take legislative action, and allows Congress to effectively have a veto power over the President.  Thus, Chadha, as well as the Constitution, suggests that McConnell’s plan is unconstitutional.

First, Article 1, Section 8, lists Congress’ powers, and Clause 1 of that Section states that “[t]he Congress shall have Power . . . . to pay the Debts . . . .”  It is Congress’ role to “pay the Debts,” which, throughout our nation’s history, has meant that Congress proposes the plan to pay the debts, and the President signs or vetoes, and then Congress can override a veto.  In other words, to “pay the Debts,” bicameralism and presentment must be followed.

However, under McConnell’s plan, the roles of Congress and the President are flipped.  The President is the one who must propose “legislation,” and then Congress effectively gets veto power over the proposal.  To pass this “legislation” (i.e. raise the debt), Congress would not need a vote from both houses (bicameralism) – rather, they would only need one house NOT to pass a resolution of disapproval (because if both houses don’t vote to disapprove, the debt increase occurs).  If both houses passed such a resolution, and the President then vetoed it, then only one-third of one house could ensure that the debt ceiling would be passed, because the only way to stop the debt ceiling increase at that point would be to have 2/3 of each house vote against the debt ceiling increase (to override the President’s “veto”).

In other words, under McConnell’s plan, there is no ordinary bicameralism and presentment process.  Instead, Congress simply abdicates its power under the Constitution to “pay the Debts.”  Hence, McConnell’s plan is unconstitutional.


C. Aside: Political Accountability

As an aside, one of the main checks against the power of Congress and the President is accountability to the people.  The purpose of McConnell’s plan is to avoid accountability, by making the President appear to be the only one responsible for debt ceiling increases, when, for all practical purposes, Congress forces the President to increase the debt ceiling.  Such avoidance of accountability is not unconstitutional, per se, but certainly raises doubts as to its desirability.

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The Free Speech Excuse

The title of this article may be misleading.  To be clear: I am a big fan of the First Amendment.  Freedom of speech is possibly the most important individual human freedom.  Every person in the world should be allowed to freely express himself in “the marketplace of ideas,” except in extremely rare circumstances.

Yet many people confuse the point underlying freedom of speech.  Freedom of speech gives one the right to express him or herself.  However, it does not mean that one should express one’s self in any manner.  John has the right to say: “If you are a non-Christian, you are inferior;” yet Susan does not have to condone this speech simply because John has a right to make that statement.  Freedom of speech works both ways – Susan can judge John and make her judgment known by stating publicly that his statement is bigoted.  If John responds by saying that he should not be condemned because of freedom of speech – this is a false argument.  John has the right to say what he wants, but Susan and all others offended by his comment may judge him at will.

Unfortunately, the above example is not a far-fetched creation from my mind.  In California, a car dealership actually said the following in a radio advertisement (click to hear audio):

Did you know that there are people in this country who want prayer out of schools, “Under God” out of the Pledge, and “In God We Trust” to be taken off our money?

But did you know that 86% of Americans say they believe in God? Now, since we all know that 86 out of every 100 of us are Christians who believe in God, we at Kieffe & Sons Ford wonder why we don’t just tell the other 14% to sit down and shut up. I guess maybe I just offended 14% of the people who are listening to this message. Well, if that is the case, then I say that’s tough, this is America folks, it’s called free speech. And none of us at Kieffe & Sons Ford are afraid to speak up. Kieffe & Sons Ford on Sierra Highway in Mojave and Rosamond: if we don’t see you today, by the grace of God, we’ll be here tomorrow.

Under the “Kieffe & Sons Ford” interpretation of the First Amendment, it seems that (1) Freedom of speech only applies to the majority opinion; (2) if someone makes a statement that offends others, asserting that the statement is “free speech” means the statement should not be condemned.  I’m sure that’s exactly what the founding fathers were going for.  [Not So Silver Lining: Apparently Kieffe & Sons apologized after many complaints, then retracted their apology.]

The essential problem here, and in many usages of offensive speech, is the assumption that free speech does not go both ways.  But it does – anyone has a right to condemn another for saying something that is idiotic, offensive, or short-sighted.  Simply because something is within the right to free speech does not mean it must be condoned, or that a response to that speech is not considered free speech of its own.  Nor does the right to free speech only apply to a majoritarian view.  Any child who has studied Galileo and Copernicus, or Adolf Hitler’s Germany knows that a majority-only free speech rule would be unproductive and dangerous.

Perhaps everything I’ve written in this piece is completely obvious to everyone that will read it.  But there are many people out there that think they should have a “get out of jail free” card for making offensive speech simply because they have a right to make it.  You can exercise a right and be a horrible person at the same time.

[P.S. This reasoning also applies to how both major American political parties argue against “political correctness,” but in different ways and merely to favor themselves.  Maybe sometime soon I’ll write an article about that.]

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