Part of Debt-Raising & Deficit-Reducing Legislation Is Unconstitutional

The long-awaited and controversial legislation raising the U.S. debt limit in two stages and providing for certain immediate and future spending reductions is also unconstitutional in part. This bill was passed on August 1st (Monday) by the U.S. House of Representatives. It will likely be approved by the U.S. Senate and signed by the President on Tuesday, August 2nd – just before a Federal “default” deadline at midnight.

This compromise legislation has been vociferously criticized by many Republicans, Democrats and Independents. However the fear of a “credit downgrade” and other probable negative economic consequences were the basis for this particular approach. Its many provisions are the result of a fabricated crisis. Many minority-view Tea Party goals would not have been approved through the Constitutionally-provided legislative process without the real but lunatic threat to permit such a massive “default.”

The plan can be criticized on many ideological, economic, financial, political, social and ethical grounds. Congress and the Administration continue to ignore the far greater problems facing the nation and its citizens. This legislation is merely another example of Washington DC’s complete corruption, extreme partisanship, paralysis, and overall dysfunction. It is just another symptom of our collapsing society and economy – and it will not be a cure.

The Obama Administration dismissed a few Constitutional alternatives that were available to the President to resolve this fabricated impasse that might have avoided this entire legislative approach. They were not pursued or even used as bargaining chips in the negotiations. The passage of this legislation and a very likely stagnant economy with high unemployment will be the major factors in the 2012 national elections working against the President and Democrats across the nation.

The specific provision that a “balanced budget” Amendment to the U.S. Constitution will be submitted to the 50 states for ratification without requiring the necessary two-thirds majority approval by both Houses of Congress is blatantly unconstitutional.

Article 5 of the original U.S. Constitution specifies the requirements to pass an Amendment to the original document. Every one of the 27 adopted Amendments have followed this Constitutional mandate written by the authors (aka “Founding Fathers”). It was an excellent yet flawed starting point and long-term guide for self-governance from the late 18th Century “Age of Enlightenment.”

Article V – Amendment

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof…

A Constitutional Amendment requires passage by a 2/3 majority vote (67%) in both the House and Senate before it can be submitted to the States. If that Constitutional provision is violated and ignored by Tea Party members and draconian budget cutters, then such an Amendment – even if ratified by more than 75% of the States – would not be Constitutional.

The authors of the Constitution did not believe that Congress should abrogate a major duty to the nation, and one of the rare super-majority requirements specifically written in the text, just because they could not organize a clear super-majority vote for a significant change in the original document.

The rational basis for requiring a “balanced budget” Amendment is highly suspect. Defining what constitutes a “balanced budget” is not easily identifiable. Many businesses and U.S. States carry two budgets – Operating and Capital. Adopting this type of Amendment would be an invitation to more bitter partisan arguments, outright financial subterfuge, and fraudulent accounting tricks to balance the books. This Amendment would be an attempt by small-minded people to box in future generations to a particular ideology that has little support in economics, business, finance, politics or history.

There are many prudent and viable arguments against perpetually running huge annual budget deficits. However the future needs of the nation should be determined by sane representatives who understand the real world and how to balance many conflicting national priorities. Arbitrary formulas and rigid ideologies do not work in the real world.

Simply because in 2011 our political system is so corrupt, paralyzed and dysfunctional that it can barely address only the smallest of problems, does not justify forever constricting future generations on how they operate and finance the nation’s political and economic systems. The Federal Government has the unique Constitutional power to create the currency and financial system that are the basis of the nation’s and world’s economies. It is not designed to be operated as a small household as many delusional people fantasize it should.

The provision in this legislation with respect to a balanced-budget amendment is unconstitutional. It cannot be extorted from a divided Congress under a mechanism that blatantly disregards the clear requirements of the original governing document. Any member of Congress or the general public has the legal standing to challenge in Federal Court this silly, narrow-minded, short-sighted, pig-headed, Tea-Party extorted, and unconstitutional provision.

Submitted on 8/2/11 by Marc Pascal happily ranting from Phoenix, AZ. ([email protected])

Author: MARC PASCAL

Marc Pascal is an private enterprise counselor and independent arbitrator and mediator in Phoenix, AZ.

5 Comments

  1. Excellent post Marc. Depressing, but on the beam.

  2. i think it’s becoming increasingly clear that the “consitutionality” of anything completely depends on who’s on the SCOTUS at the time.

  3. I’m not sure that it makes much difference, since there are so many forces against the BBA. It probably won’t pass muster by any court.

    If it did make it, it would be one of the first to limit congressional power since the original 10. It interesting that the 11th through 26 added to, or at least didn’t affect, congressional power, but the 27th (the last one) limits it slightly (congressional pay only).

    Maybe the turnaround started in the 90s?

  4. Great – the debt ceiling drama has been solved by giving the Republicans a fictional shot at a BBA. I hope the deal passes before republicans in the senate catch on.

  5. The language may have been sloppy — what is the explicit language used in the legislation that is being made into law, the real deal?

    (“A vote” may just have been casual reference when discussing it, but it actually would be a two-thirds vote in both houses as needed.)

    I would say that though the amendment obviously is needed and would be outstanding, that the problem once it passes both houses (and a Presidential veto — would Obama be sound-minded or be beholden still to dino-Dem interests and corruption of power?) is that it has to be ratified but a sufficient number of states.

    These are states that no doubt are going to get excess funds from Washington reduced following this budget deal.

    How would the (Red and Blue) states react to a balanced federal budget amendment? Would they wish or wish not to ratify it?

    I saw one recent story but can’t find it again — but here’s the liberals’ little darling boy, Ezra Klein (MSNBC teevee staple), who is one of the few, the proud, the willing to look at it, think some.

    http://www.washingtonpost.com/....._blog.html

    * * *

    For those who want to know more details about state balanced budget requirements (a good set of models for the feds):

    http://www.ncsl.org/documents/.....ns2010.pdf

Submit a Comment