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30.11

No Presidential Spending Authority

Summary:

Congress shall not delegate spending authority to the President.

No Presidential Spending Authority: Proposed Language

Congress shall have no power to pass any Bill delegating to the President the authority to take any action subject to Congress’s disapproval or to increase spending authority related to any government obligations the budget authority for which has not been provided in advance, unless such delegation is necessary and accompanied by clearly defined and ascertainable standards.

Commentary:

 

Political gamesmanship played by the President and the Congress offends the sensibilities of our citizens. Thus, for example, no senator or congressman wants to be seen as voting to increase the debt limit because, generally speaking, most Americans are against that. The President argues for increases because the government cannot continue to operate without those increases and cites positions scaring every person who is in any way connected directly or indirectly to a government program. Congress, on the other hand, does not have the courage to find the almost impossible solution to this problem.  Rather, Congress refuses to increase the debt limit unless it receives concessions that it believes most people would find reasonable. We can safely say that, if Congress fixed this nation’s spending problem, most of its members would not be reelected. The result is Congress will not fix the problem, preferring to rely on inflation to do its job and then blame someone else for the inflation.

 

This phenomenon occurred in 2011. The result was the Budget Control Act of 2011, which allowed the President to increase the debt by $1.2 trillion upon fifteen days’ notice unless Congress objected. Since it would be impossible today to obtain a veto-proof resolution of objection, this allowed many senators and congressman to vote against the debt increase for political purposes back home without accepting responsibility for that debt increase. The Founding Fathers would never have allowed such a delegation of financial authority from the Congress to the President and it should be prohibited in the future in order to make Congress responsible and accountable for the financial operations of this country. The other problem is that there is nothing citizens can do to challenge this unconstitutional delegation because the courts will say they have no standing. See Amendment 36.2 Commentary. Further, it is likely unconstitutional for a majority of Congress to pass a law with a stipulation that the law can only be undone by a two thirds vote.

The spending authority of our nation is one of the most solemn duties Congress has. Because of the Fourteenth Amendment, the United States is forbidden to dishonor “the validity of the public debt … authorized by law.” Yet, Congress delegates to the executive branch (the Secretary of the Treasury) the authority to borrow money without Congressional approval, with the only discipline being the debt limit Congress has approved. The Secretary of the Treasury cannot borrow money in excess of this limit. Until 1917, Congress voted on each and every new issuance of debt and specified the amount and terms of the debt. We have not recommended that Congress renew the practice before 1917 believing tighter control over spending or the debt limit will be sufficient.

Whether Congress can delegate legislative authority to the President has been addressed by the Supreme Court. The general rule is that delegation is unconstitutional if there is a lack of standards in the duties conferred upon the executive agency. Thus, the search for adequate standards to restrict administrative discretion in the executive branch lies at the heart of every delegation challenge. The essential inquiry is whether the specified guidance “sufficiently marks the field within which the Administrator is to act so that it may be known whether he has kept within it in compliance with the legislative will.” In this respect, the courts will look at the totality of the standards, definitions, contexts and prior practices to see whether they provide an adequate intelligible principle to guide and confine administrative decision making. 

The Supreme Court has stated that a constitutional power implies a power of delegation of authority sufficient to effect its purposes, that appropriation power is not functionally distinguishable from other powers that have been delegated by Congress, and that many delegations of authority have been recognized in the areas of immigration, federal crime, war, fixing prices for commodities and rents, determining when, if ever, a law should take effect, and others. The necessity of delegation is sometimes discussed, but there is no case finding an unconstitutional delegation based on a lack of necessity. 

Illustrative of the problem is the Budget Control Act of 2011 discussed above, which is equivalent to contingent legislation.  The contingency was that under certain circumstances the President could increase the debt limit by $1.2 trillion. We have no objection to reasonable and proper delegation of legislative authority to the executive branch and its agencies.  However, the delegation of authority to increase the national debt by $1.2 trillion is believed by most people to be outside the circle of acceptable delegation. The sole purpose of the Budget Control Act of 2011 was to mislead the American people into believing that the issue of the size of the spending limit would be reconsidered by the Congress and acted on in the usual manner. Yet, the legislation was really structured for political purposes having nothing to do with the intelligent management of the nation but rather giving certain elected officials a chance to go on record against an increase when they were really for it.

The notion that the President can have authority subject to the disapproval of Congress is a legally unchallengeable act (except by a congressman). It is an unconstitutional trick essentially requiring a two thirds vote (veto-proof act) to undo the debt increase even though our Constitution requires only a majority vote to pass the law.

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