Inverting the Constitution

When the framers of the Constitution designed its separation of powers features, they presumed that members of each of the three branches would try to protect their own turf.  In other words, grabs of power by one branch would be met by hard pushback from other branches.

What they did not anticipate was that Congress would simply give away power to the Executive.  It seems like Congressman only want their job titles, and maybe the ability to pass a few earmarks for the home district now and then, and would really like not to be bothered by that whole legislation thing.  After all, your election opponents can't critique you for votes that were never taken.

This has been occuring for years, with the accretion of regulatory authorities (like the EPA) whose rules-making effectively usurps traditional Congressional regulatory authority.

More recently, the Democrats in Congress gave away immense power in Obamacare by creating an independent cost cutting board.  Cost cutting suggestions of this board become law automatically unless Congress votes to override the changes, and even then they cannot override without passing cost cuts of similar magnitude on their own.  The whole point was to take legislation of things like the doc fix, which just gets everyone riled up, out of the sphere of Congressional accountability.

Now the Senate Republicans are proposing what appears to me to be exactly the same bullsh*t vis a vis the debt limit.  The debt limit is in fact a poor name.  In fact, it should be called the debt authorization.  Issuance of government debt can only by Constitutionally authorized by Congress, but instead of giving the Administration a blank check, it authorizes the Treasury to issue debt up to some limit, kind of like the limit on a credit card and serving much the same purpose.  While Democrats talk about the debt limit as if it is some useless device, sort of like an appendix, it is in fact central to the excercise of power by both branches as set up in the Constitution.

Senate Republicans, though, want to change all that by giving the Executive Branch what amounts to a credit card with no limit.  Why? Again, Congress is just dead tired of being so accountable for so many difficult decisions, and it would rather turn the President in to an Emperor than have to face difficult questions at reelection time.  This is so gutless I could scream:

The debt limit now works as an only if proposition: the debt limit is increased only if Congress votes affirmatively to authorize an increase. Increasing the debt limit therefore requires a majority of the House and Senate to cast a difficult aye vote, plus a Presidential signature. The McConnell proposal would invert this into an unless proposition: the debt limit would automatically be increased unlessCongress voted to stop it. And by changing the key vote to a veto override, you would need only 1/3 of either the House or Senate to take a tough vote to allow the debt limit to increase.

In exchange for this significant increase in Presidential authority, the President would take most of the political heat for the debt limit increase, and he would be required to propose difficult spending cuts of an equal or greater amount.

Congresspersons of both parties don't give a cr*p about the Constitution or fiscal responsibility.  They just want to avoid accountability.

Fortunately, I can see the House buying this at all.  The House has a special role in spending and taxation, and I see them far more loath to accept this kind of deal.


  1. Gil:

    Hence Spooner's disagreement with the concept of a Constitution being a magical fix to governments . . .

  2. John Moore:

    It is unconstitutional for Congress to give away power the way you describe for Obamacare. A congress cannot legally bind a future congress (or even itself). A future congress can, for example, refuse to fund the board or enforcement of any of its edicts, and no provision in prior law can change that.

    As for the the budget games - the whole thing is an exercise in political Kabuki. The Republicans only control one house of Congress, and thus are limited in what they can do to meet their promises to cut back on spending. Hence they have no choice but to play games.

  3. NL_:

    The problem is that we often conceive of governments like individuals or businesses - entities that possess rights and discretion in exercising their duties. And the general default is that an entity can trade away its own flexibility, since we sort of assume that the interest entity will protect its rights when they are needed and trade them away when it is efficient.

    But government entities may have strong incentives to trade away their rights, even though it doesn't serve the interests of the citizenry. For example, states might trade away federalism precisely because it reduces the competitive stresses on them. State legislators and governors can then blame the feds for lack of funding or poor policies. Members of Congress love to blame the administrative agencies, giving them lots of leeway and then turning around and then rescuing important constituencies from bad agency decisions. Not only do politicians get insulated from the bad decisions, but they become more important because of their intermediary role between the public and the government.

    We need to conceive of government less from a framework of rights and discretion, and more in a framework of responsibilities and duties. Congress needs to be forced to make more laws, so that citizens can hold members of Congress accountable rather than blaming unelected bureaucrats. States need to have larger policymaking roles, so that citizens can hold them accountable, too. Congress and the states should not be able to trade these duties away.

  4. marco73:

    The sole purpose of being a politician is to be win elections and re-elections in order to stay in office and enrich themselves. Any other effects of their tenure in office, whether positive or negative for the citizens, is a side issue, in the politician's mind.
    Once the office becomes a burden, then politicians step down and become consultants, rain-makers, whatever the fashionable term is today.
    Constitution? Civic duties? Responsibility to the public?
    If you try to look at Washington through those prisms, your head will hurt.

  5. Voolfie:

    Witness the rise in the importance of the Judiciary. These be-robed individuals would have almost no power over us if the legislative branch didn't keep ducking its responsibilities and foisting unpleasant, politically loaded issues on them. It is at the point now where we live not under the rule of law, but under the rule of law-yers. God save the republic. -JW

  6. Don:

    John Moore>The Republicans only control one house of Congress, and thus are limited in what they can do to meet their promises to cut back on spending.

    Uh, no. If they have the balls to do it, they can most certainly cut back on spending with control of only the house. They cannot INCREASE spending, but it's dead simple to CUT BACK, simply stop authorizing the expenditures. They have they check book.

    Problem is, many of them don't have the guts to pull the trigger on it, and they're gonna blink again in the next week and a half.

    Our political system has become an unstoppable engine of mediocrity and corruption, rewarding passing the buck and spending like a drunken sailor and punishing responsibility and thrift. I fear that the TEA party is too late, assuming that they actually understand the danger, and I'm not convinced they do.

  7. Nick Archer:

    Thanks for articulating the issue so well. The power vacuum left by Congress is being filled by the President and judiciary, with horrible results. It's time to suck it up in more ways than one.

  8. Dan:

    Question: How many times did the Republican-led Congress, under a Republican president, vote to raise the debt limit between 2001 and 2006?

    The answer: 19 times, amounting to a $4 trillion increase. And Rep. Boehner and Sen. McConnell never seemed to have an issue with raising the limit at the time. Neither did they demand spending cuts in return for their votes.

    Now that a Dem is in the White House, the Republicans have apparently found religion on the debt and demand major concessions by the president for their vote to raise the ceiling. This is nothing short of rampant hypocrisy.

    I don't like seeing the country's debt explode as it's done the last few years under Obama and the Dems, but at least the Republicans could have the decency to admit we've been here before when they were in power. Either you're for lowering the debt or you're not. You shouldn't change your view based on the prevailing political winds.

  9. Ted Rado:

    What Constitution? The Constution disappeared when the interstate commerce clause became the card that trumps everything else. The USG has unlimited dictatorial powers. This has been getting worse for decades, under both political parties. We now have the food police, the fuel police,etc. Maybe we should exhume Tojo and reinstitute the thought police.

    The Supreme Court is no better. They are now creating science from the bench (CO2 control) as well as legislating from the bench.

    When the time comes when most citizens lose all confidene in the government, we are in deep doodoo. Congress already has an abysmal approval rating. I know of no one who has any confidence in them. They will buy the vote with our money and stay in power. Meanwhile, they screw everything up and spend us into bankruptcy.

  10. caseyboy:

    Gil, our Founding Fathers didn't count on us turning into a Godless people. They hoped that "Fear of God" thing might prove a to limit pour behavior. It wasn't their failure, it is ours.

    John Adams, “Our Constitution was made only for a religious and moral people. It is wholly inadequate for the government of any other.”

    Patrick Henry, "It is when a people forget God that tyrants forge their chains."

    George Washington, “It is impossible to rightly govern without God and Bible”

    James Madison, "Religion is the basis and foundation of government. We have staked the whole future of American civilization not upon the power of government, far from it. We have staked the future of all of our political institutions upon the capacity of mankind for self-government; upon the capacity of each and all of us to govern ourselves, to control ourselves, to sustain ourselves according to the Ten Commandments of God."

    Amen James!

  11. Quizikle:

    This seems to permeates the entire Federal system. There are CONSEQUENCES for doing anything. The good ones are nowhere near good enough to offset the bad ones. Much better to smooth feathers, pass the buck, be neutral, don't pass judgement, don't make waves, give no reason for complaints of any kind. The only thing worse than being wrong is being right. Talk all you want, say anything you want ... as long is there is absolutely no content in the message. Always give "happy" talk. No skeptics, no doubt, no problems. ESPECIALLY if there are some.

    And by all means, do NOT offend any one for any reason.