McConnell: I Don't Know Constitution Any Better Than Obama Does

Days after the Obama Administration's attempt to seize control of the U.S. budget was roundly shown to be illegal, Sen. Mitch McConnell (R-Kentucky) and Rep. John Boehner (R-Ohio) have stepped up to show that Republicans want to tear up the Constitution too. 

Instead of letting the president usurp Congress' budget-making authority, McConnell is now offering to give it up freely. AP's David Espo writes that under McConnell's plan…

Obama could request increases of up to $2.5 trillion in the government's borrowing authority in three separate installments over the next year, as long as he simultaneously proposed spending cuts of greater size.

The debt limit increases would take effect unless blocked by Congress under special rules that would require speedy action - and even then Obama could exercise his authority to veto such legislation. Significantly, the president's spending cuts would be debated under normal procedures, with no guarantee they ever come to a final vote.

In essence, McConnell's proposal would greatly enhance Obama's authority to avoid a default, while also virtually absolving Republicans of responsibility if one occurred… 

Under his proposal, the debt limit would rise by $100 billion as soon as Obama requested the first of the three increases envisioned.

Officials have said that the government normally borrows about $125 billion a month to finance operations, meaning Obama could avoid a default for a brief period of time simply by asking for it.

This cession of legislative power to the president is getting a remarkably warm reception from Republicans. "Everybody believes there needs to be a backup plan if we are unable to come to an agreement," Boehner agrees agreeably. "I think Mitch has done good work." Boehner also claims fellow Republicans Rep. Eric Cantor (Virginia) and Sen. Jon Kyl (Arizona) are in agreement. 

Sen. Chuck Schumer (D-New York) has said executive borrowing authority is "certainly worth exploring" but has shown less enthusiasm than Republicans. "It's something worth looking at for the next time around," Schumer said Friday, "but I don't think it's had enough fermentation-examination, to employ at this time."

In an opaquely worded statement, Americans for Tax Reform's Grover Norquist praises McConnell without endorsing his plan. "ATR wants to ensure a debt limit deal contains the maximum amount of real spending cuts and absolutely no tax increases," Norquist writes. "Leader McConnell has put forth a plan that attempts to put this goal in motion."

There is no constitutional authority for the legislative branch to surrender its clearly delineated duty to write bills for raising revenue and borrow money on the credit of the United States. 

Treasury Secretary Tim Geithner recently employed a clever but easily falsifiable argument, which cites Section 4 of the 14th Amendment to claim that the president can override the separation of powers. 

I dismantled this argument last week. On Friday, the highly regarded law professor Laurence Tribe rebutted Geithner's suggestion that the administration was considering the "Section 4" or "constitutional" option and also provided a humiliating disproof of Geithner's subsequent denial that he had made the suggestion. (Note that once again the labeling of a political initiative "constitutional" indicates that it is in fact unconstitutional.) 

McConnell's enthusiasm for this unconstitutional gimmick is disheartening, but it does not change the law. Congress has no more right to give up its authority than the president has to confiscate it.