Unconstitutional Contingency Plan?

Much of the debate over Senator McConnell’s backup plan has been over the policy wisdom of the plan. And I am firmly in the camp that asks why Republicans would abandon the field entirely to gain what they view as a political high ground. Rich is correct that Republicans would not escape whatever disillusionment would follow from a debt-ceiling hike among conservatives and Tea Party supporters simply because the proposed compromise plan gives the ultimate say to the president.

What has not been discussed here is the constitutionality of this convoluted plan. It strikes me as highly suspect under the Bicameralism and Presentment Clauses of the Constitution. As I understand the proposal, the legislation would not actually hike the debt ceiling directly, which would, of course, be the most clearly constitutional route — and, not coincidentally, the one with the most political accountability for all involved. Instead, it would adopt a scheme whereby the president can unilaterally hike the debt limit in three $700 billion dollar traunches with Congress retaining the right to disapprove of the hike (ultimately by two-thirds votes in both houses in the event of a veto by the president of a disapproval resolution). But if Congress does nothing, the debt ceiling is raised by presidential fiat (subject only to the $700 billion ceiling set by the proposed legislation). 

As most children who have watched Schoolhouse Rock’s “I’m Just a Bill” know, in order to become valid legislation, a bill must be passed by both houses of Congress and presented to the pesident for his signature. This proposal seems to reverse that process. A proposed debt-ceiling hike becomes law by presidential recommendation and congressional inaction (or, alternatively, a byzantine series of events involving congressional disapproval, a presidential veto, and a failure to override that veto — in which case it is the veto that creates law, rather than preventing the creation of law).

The McConnell proposal is supposedly modeled after the Congressional Review Act, a statute that allows Congress to override an agency regulation through a similar process. But the key difference is that the agency regulation which is overridden by the CRA is already law — made so by delegation of congressional authority to the agency by duly enacted statute. And Congress then enacts a separate law (which requires presidential signature) to override that regulation. Here, unless you can say with confidence that the compromise statute actually is responsible for hiking the ceiling (which of course is exactly the opposite of what McConnell is trying to accomplish), then there is no law to be overridden by the congressional disapproval vote. 

So a question for McConnell and his supporters is: How does your proposal comport with constitutional lawmaking requirements? In abandoning the field to the president as a policy matter, aren’t you also ignoring the constitution’s Bicameralism and Presentment Clauses? The devil is in the details, of course, and there may be something in the proposed legislation that, when drafted, comports with these requirements. But I am highly skeptical of its constitutionality, in light of the outline floated yesterday.

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