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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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May/09

18

The Notre Dame / Obama Controversy

I was happy to see that, for the most part, President Obama was received with open arms at Notre Dame’s Commencement over the weekend.  However, the controversy surrounding Obama’s visit has prompted a number of questions, not only about abortion rights but about the value of speech and the value of tolerance.

Speech

Speech is extremely essential to any society.  The right to free speech is one of the most celebrated and long-lasting rights in America.  The First Amendment explicitly prevents the government from abridging our right to free speech.  Additionally, society generally shuns private individuals (who are not obligated to observe the 1st Amendment) who try to censor speech.

The purpose behind this celebrated right is that we recognize that humans are fallible, and that the government is not all-knowing.  We recognize that no single person or group of persons can always be right about everything.  Rather, we recognize that new, unpopular ideas may turn out to be correct.  See Galileo.  Simply because an overwhelming majority of scientists believe that climate change is man-made does not mean that we should censor the dissenters.  A belief of a large crowd can often be wrong, and if we refuse to believe that we could ever be wrong, then we risk severe harm to human civilization.

Additionally, speech is often the vehicle by which people can come to optimal solutions.  Theoretically, when we debate important ideas, and we allow many people to speak, the best ideas will rise to the top as more and more individuals become convinced.  Furthermore, speech can help us strengthen our convictions in our own beliefs.  If we learn the best and most convincing arguments of people that believe differently from us, but we can rationally reject those ideas, then presumably we must reject them because we believe our views are even more convincing.  We could not realize our own views’ strength if we did not compare them to those of others.

Although Notre Dame is not the government, and does not need to obey the 1st Amendment, Notre Dame should have been shunned if it decided to keep Obama away purely because some students do not like his views on one issue.  Keeping him away would be asserting a kind of infallibility in both the school and in the students themselves.  It would encourage students to believe that they do not need to recognize that any beliefs other than their own, and it would encourage students to shelter themselves only with those that believe the same things they do.  It would prevent the students from learning other ideas that could either strengthen their own convictions or change their mind.

Obama was not at Notre Dame to convince Catholics that killing babies was a good idea.  Primarily, he was there to say congratulations for graduation.  As a secondary matter, he was there to respond to the protests at Notre Dame, and say that although perhaps pro-lifers and pro-choicers will never agree on the issue of abortion, they still have to live with one another and be able to speak with one another.  Moreover, if there is ever to be any serious abortion-related legislation, both sides are going to have to work with each other.  If you never speak to the other side, that will never happen, and neither side will ever be able to compromise.

Tolerance

Obama’s visit also raised questions about tolerance in society.  By tolerance I do not mean that Catholics should believe that Obama’s pro-choice view is just as correct as their pro-life view.  Rather, they need to accept him as a human being despite having conflicting views with their religion.  I am a recently-confirmed Catholic.  One of the most important lessons that I learned in the Bible is that Jesus did not only associate with saints, but sinners as well.  Jesus did not fight with other people; he turned the other cheek.  Jesus loved his neighbor, and he loved his enemies.

Catholics who responded to Obama’s visit by handing out hateful pictures of aborted fetuses and calling Obama a murderer did not act the way Jesus wanted people to act.  Instead, they shut their minds and showered Obama with hatred.  The Golden Rule that not only Christians but many persons claim to obey is “Do unto others as you would have them do unto you.”  Would a Catholic who had an opportunity to speak at a school that was very pro-choice have wanted to be showered with this type of hatred?

Conclusion

Those that are pro-life and pro-choice need to put down their weapons.  First, abortion is not the most important policy issue going on right now in the world.  Both sides are going to have to work together to deal with a number of other important issues.  If they refuse to talk to one another because of abortion, that will be a shame, and more important things will not get done.  Secondly, humans are not infallible.  Assuming that one is all-knowing is extremely foolish and risks a “Galileo situation.”  Finally, Catholics who treat others with hate, even those who are their greatest enemies, are contradicting Jesus’s teachings.  It sounds tacky to say this, but: can’t we all just get along?

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Jul/08

12

Faking the Issues

Generally, candidates for any election in the United States do quite a bit of pandering.  And generally, the pandering they do is a wholly illegitimate take on a given issue.  One such issue that strikes me in particular is free trade.  Politicians regularly attack free trade by claiming that trade takes away jobs from Americans, and that it is bad for the country, etcetera.  They do so even though virtually 100% of economists agree that free trade helps a lot more than it hurts.  Yet, somehow, politicians get votes by bashing free trade.

My question is: how in the world is this strategy successful?  For instance, during the nasty Obama-Clinton primary debates, both candidates continually tried to one-up each other by bashing free trade.  Obama is now backpedaling on that issue for the general election, which indicates he was probably just trying to pander during the primary.  If that is the case, then why would he not respond to Clinton’s anti-free-trade rhetoric with: “Your assertions are wrong.  All economists disagree with you.  Economists are trained to know whether free trade is good or bad.  Would you want a professional bowler to act as your doctor when a doctor says the bowler is wrong?  No.  Would you want a doctor doing your taxes when a tax professional says the doctor is wrong?  No.  Would you want Joe Schmo down the street telling you how to set trade policy when all economists say he is wrong?  Hell no.”

Or, better yet, he could explain why economists think trade is so great.  He could explain that, yes, indeed, there are some downsides to trade, but the upsides are much greater.  He could explain the concept of comparative advantage once explained by David Ricardo and the basic idea of the source of wealth from Adam Smith’s The Wealth of Nations.  It would be a glorious moment for Mr. Obama and the entire country.  It would be a rare occasion when a politician actually explained the pros and cons of an issue in a debate, and then explained why his side prevailed.  It would not be the generic politician’s response to a question: say something incomprehensible and then throw as many buzz words and campaign slogans out to the crowd as possible.  And significantly, it would require the opposing candidate to respond in a substantive manner.

How would someone respond to a clear argument about the benefits of free trade, an argument supported by an entire profession, followed by the question: if you disagree, please explain why?

If two candidates were in a debate, with one candidate pro-trade and the other anti-trade, and the pro-trade candidate explained the benefits of trade and uttered the “explain why” question, it would be a glorious moment of awakening in this country for several reasons.  First, everyone watching the debate would learn about free trade – a topic most Americans are ignorant about.  Secondly, it would be a rare occasion when a politicians in a major election actually debated the pros and cons of an issue rather than uttering buzz words and catch phrases to pander to whom he or she hopes is the majority voter.  Finally, the candidate willing to actually debate the facts of an issue would likely be one of the smartest, most candid, and best candidates the country has seen for a long time.

The cynic in me says this would never work.  The cynic in me says that Americans are too stupid to listen to real pros and cons of issues and figure out their own opinions – that is why buzz words and catch phrases at debates work so well.  The cynic in me says that Americans would rather hear “I’ll get the government out of your pockets” than “A study by this prominent professor shows that tax structure X is better than tax structure Y.”

But I believe that this country is smart enough for real facts to come to surface in major political debates.  Back in the revolutionary era, our founding fathers had nowhere near the kind of education that Americans have today.  Even the worst educational systems in America today are miles ahead of anything our founding fathers had.  Yet our founding fathers debated serious issues in politics, and people were very interested in knowing the cold hard facts.  I think a lot of it had to do with the fact that politicians in those days treated the voters with respect.  They didn’t try to pander the way politicians do today – they debated the theories of Locke and Montesquieu and argued passionately and intelligently.  Regular citizens regularly read what the prominent politicians had to say and often wrote to the papers to voice their opinions.  There are plenty of people out there today that would do the same, if today’s politicians would treat them like adults and argue the issues, rather than trying to argue using empty dialect.

This article is not an endorsement of either Barack Obama or John McCain.

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Apparently, one of Barack Obama’s largest political liabilities is that 15% of voters think he is a Muslim, and do not feel comfortable voting for a Muslim (AP-Yahoo Poll Conducted April 2-14) (some polls say 10%).  Notwithstanding that it is a bit crazy to think someone who just publicly dealt with his connections to a crazy Christian pastor is Muslim, it disturbs me that 15% of the country would not vote for a candidate because he is a Muslim.  Isn’t it racist to not vote for someone because he practices a particular religion?  I do not see any other way to describe these attitudes.  Isn’t the Jim Crow era over?  Haven’t we moved on?  Apparently not, for 15% of the country.

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May/08

7

Stephen Colbert on the Gas Tax Holiday

Sorry to harp on the gas tax holiday so much, lately, but this is hilarious:

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