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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Wednesday, July 13, 2011 ::
    The McConnell Plan

    Mitch, not Mike.

    On the policy and politics of it, I'm impressed by today's Wall St. Journal editorial. (On the debt limit as "hostage," look for the Phil Gramm reference nestled therein. If you don't think that, without a plan such as McConnell's, Republicans would run away squealing, preening, debt-limit-raising and tax-raising when midnight on August 1 rolls around, and then lose big in '12, then you don't know Republicans.)

    Is there a constitutional problem with Sen. McConnell's plan? The briefest summaries of it that I've seen make it sound like a legislative veto, such as was held unconstitutional in INS v. Chadha. So it would be if the plan involved asking the President to raise the debt ceiling, subject to a one-house or even bicameral veto-by-resolution, not itself subject to presentment to the President.

    But that's not what the plan is, according to more detailed summaries that I've been able to find. First, it authorizes -- by law, i.e. via the Art. I Sec. 7 process -- the President to raise the debt limit. That's really Congress raising the debt limit: it merely hands the President the lifting instrument. See e.g. The Brig Aurora (upholding a federal statute that said inter alia: "the President of the United States be and he hereby is authorized, in case either France or Great Britain shall so revoke or modify her edicts as that they shall cease to violate the neutral commerce of the United States, to declare the same by proclamation, after which the trade suspended by this act and by the act laying an embargo . . . may be renewed with the nation so doing." -- i.e. Congress may simultaneously impose a trade embargo and authorize the President to remove it later, under specified conditions).

    And while we've got The Brig Aurora on the table -- no, it's not an unconstitutional delegation, since it gives the President very narrow choices: either don't lift the limit, or, if you do, lift it within statutorily prescribed limits. Accord Field v. Clark (upholding a free-trade statute that directed the President to impose duties on sugar, molasses, coffee, tea, and hides from countries whose trade policies "he may deem to be reciprocally unequal and unreasonable"; the statute then specified the tariffs).

    The admittedly byzantine "disapproval resolution" processes in the McConnell plan, far from weakening the plan from either a nondelegation or a Chadha p.o.v., actually strengthen. These processes further curb the assignment of debt-limit-raising to the present, and the disapproval resolutions must all go through the bicameralism and presentment process, thus satisfying Art. I Sec. 7 and Chadha.

    Am I missing something?

    (For alternative ways for congressional Republicans to make Obama take "ownership" of debt-limit increases and the harshest consequences thereof, see Bill Kristol's take today. His ideas may be better policy than McConnell's. He also thinks the McConnell plan is "probably unconstitutional," but that's ok, everyone gets to be wrong once or twice in a debate as long and sloggy as this!)

    :: David M. Wagner 11:26 AM [+] ::

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