Debt Brinksmanship To Unconstitutionally Cede Congressional Power?

By Big Tent Democrat, Section Legislation
Posted on Thu Nov 12, 2009 at 12:48:38 PM EST
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The Hill reports:

Senators from both parties on Tuesday put new pressure on Speaker Nancy Pelosi to turn the power to trim entitlement benefits over to an independent commission. Seven members of the Senate Budget Committee threatened during a Tuesday hearing to withhold their support for critical legislation to raise the debt ceiling if the bill calling for the creation of a bipartisan fiscal reform commission were not attached. [. . .] The panel, which has been championed by Conrad and ranking member Judd Gregg (R-N.H), would be tasked with stemming the unsustainable rise in debt.

The panel would [. . .] have the power to craft legislation that would change the tax code and set limits on government spending. The legislation would then be subject to an up-or-down vote; it could not be amended.

(Emphasis supplied.) This seems plainly unconstitutional to me. This is not the creation of an agency to administer laws passed by Congress. This is a commission that would be empowered to write the laws that Congress would vote upon (and the voting rules seem problematic too. They certainly could not bind subsequent Congresses.) Makes you wonder if anyone has actually thought this one through. BTW, if it works, why not use it for health care reform?

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Debt Brinksmanship To Unconstitutionally Cede Congressional Power? | 32 comments (32 topical)

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After watching many in Congress sell out (5.00 / 1) (#2)
by MO Blue on Thu Nov 12, 2009 at 01:02:52 PM EST

to Wall Street, insurance and phrama, don't have any faith in them protecting Social Security and Medicare.

Among its chief responsibilities would be closing the gap between tax revenue coming in and the larger cost of paying for Social Security, Medicare and Medicaid benefits. The Government Accountability Office recently reported the gap is on pace to reach an "unsustainable" $63 trillion in 2083.

Thought it through? (5.00 / 3) (#3)
by Dadler on Thu Nov 12, 2009 at 01:17:38 PM EST

They don't even think through going to war, why would they bother with this?

Well, we've been living with taxation (5.00 / 1) (#4)
by inclusiveheart on Thu Nov 12, 2009 at 01:32:21 PM EST

without representation here in the District for a long time. Guess maybe Conrad wanted to share our experience with the rest of you out there in the states.

Do you think we could call these commissioners "viceroys"? That would be cool. Rolling eyes.

Not their concern (5.00 / 2) (#12)
by mmc9431 on Thu Nov 12, 2009 at 02:38:15 PM EST

The only time Congress seems to worry about the Constitution is when guns are concerned.

None of them cared about the Constitution when they passed FISA and the Patriot Act.

Amazing. A commission with such power? (5.00 / 1) (#31)
by Cream City on Thu Nov 12, 2009 at 07:10:26 PM EST

Who knew it was that easy? Write a law, hold and up-or-down vote, and you're home for Thanksgiving. No more Saturday Night Specials a la last week -- and no more Republican showboating like that, either. I begin to see the advantages of acting so un-Constitutionally. Ask any autocracy.

It would have to be subject to bicameralism (none / 0) (#1)
by andgarden on Thu Nov 12, 2009 at 01:00:17 PM EST

and presentment, otherwise you've got a "legislative veto" problem. And because it would just be enacted by statute anyway, Congress would retain its ultimate authority to change course.

stupifying (none / 0) (#5)
by jedimom on Thu Nov 12, 2009 at 01:59:52 PM EST

it is just stupifying that anyone could claim surprise about this move when this is the Entire Basis for Orzsag's health care cost containment system

did BTD think the planned 600Billion in Medicare cuts would not happen b/c they never do a la the 93 cost containment measure?

more the fool you then for not doing your research

Others who have always been for healthcare reform, such as me, object to this bill BECAUSE of this stupid panel

this Orszag designed panel is called Imed or somethhing IMAC? they amde it have a cute name and everything for marketing

this has been the entire basis for the discussion

where did you think the savings were coming from BTD? This panel is the only thing that makes Orszags plan work

he set it up very deliberately to ENSURE (lol) that no pols would be able to be pressured into avoiding the service cuts that will follow as the night follows the day

this is healthcare redistribution , it is not expansion

in all your poohpoohing of the 'death panels' lingo how could you fail to notice the basis for those claims was this panel that Pelosi is agreeing to and that the Senate has already preapred for in Baucus Bill

but oh yeah BTD saw no difference b/w HRC and Obama on health care I forget

pfft.

: More on IMAC (5.00 / 2) (#30)
by lambert on Thu Nov 12, 2009 at 06:08:31 PM EST

See here.
An unaccountable board, modeled on the base closing commision, charged with making the "tough decisions" on entitlements? What could go wrong?
Just like only Nixon could go to China, only Obama can destroy Social Security and Medicare...

: I reread the Constitution (none / 0) (#7)
by Big Tent Democrat on Thu Nov 12, 2009 at 02:09:56 PM EST

with respect to this post and I feel comfortable with my analysis.
May I suggest you read my post so you can discover what it was about.
It is obvious you did not read it yet.

Orszag IMAC cost containment panel (none / 0) (#6)
by jedimom on Thu Nov 12, 2009 at 02:06:20 PM EST

many posts I wrote on Orszag and his Medicare gutting plans here the linkys are embedded there to the IMAC cost cut panel outlined MOONS ago by Team Obama
one quote:

Kausfiles on Orszag's BS spin on CBO and the REALITY of what is driving the costs:
...In fact, what the CBO said is that, without draconian additions that would impose automatic "fallback" cuts ("such as an across-the-board reduction in payments") if the IMAC panel's economies didn't materialize, the chances of generating those savings were slim:
Although it is possible that savings would grow significantly after 2019, CBO concludes that the probability of this outcome is low for the proposal as drafted ... [E.A.]..
1. A front page WaPo article on heart attack treatments reaches a conclusion that reinforces what many Orszag skeptics have suspected:
Although inappropriate care, high administrative costs, inflated prices and fraud all add to the country's gigantic medical bill, the biggest driver of the upward curve of health spending has been the discovery of new and better things to do when someone gets sick. ...

Congress doesn't write the laws now. (none / 0) (#8)
by Samuel on Thu Nov 12, 2009 at 02:21:14 PM EST

How dare they (none / 0) (#9)
by Steve M on Thu Nov 12, 2009 at 02:24:52 PM EST

try to take away the power of writing legislation from its rightful holder, the lobbyists.

More seriously, Congress surely doesn't have the authority to adopt rules that bind future Congresses, but can't it be done via statute? The Congressional Budget Act of 1974 is one example; it has the force of law, and I don't think Congress could just ignore its procedural requirements without passing a new statute.

As long as the basic requirements of bicameralism and presentment are satisfied, I'm not sure I agree that Congress can't tie its own hands via statute with respect to other procedural matters, like amendments and filibusters.

The could tie their own hands (none / 0) (#11)
by andgarden on Thu Nov 12, 2009 at 02:36:31 PM EST

assuming a future President isn't willing to facilitate a change in the rules. So of course what this really is is delegating more power to the President. (Sort of: the President has to be presented with a change anyway).


Senate rules are determined solely bt the Senate (none / 0) (#14)
by Big Tent Democrat on Thu Nov 12, 2009 at 03:18:34 PM EST

same for the House.

I do not think any attempt to create rules for each body can passed by Act of Congress and signature of the President.


The relevant language is (none / 0) (#16)
by Big Tent Democrat on Thu Nov 12, 2009 at 03:22:58 PM EST

"Each House may determine the Rules of its Proceedings."


That being the case (none / 0) (#17)
by Big Tent Democrat on Thu Nov 12, 2009 at 03:23:58 PM EST

To change the existing Senate rule on the filibuster will requires 2/3 vote or a ruling by the President of the Senate overruling the rule.


: Similarly (none / 0) (#18)
by Big Tent Democrat on Thu Nov 12, 2009 at 03:24:35 PM EST

the House will need to amend its rules independently.

Sooooooo (none / 0) (#19)
by Steve M on Thu Nov 12, 2009 at 03:33:46 PM EST

the Congressional Budget Act of 1974 is unconstitutional? All that Byrd Rule stuff, completely unenforceable? Guess I know how we'll pass health care now!


Completely unenforceable (none / 0) (#20)
by Big Tent Democrat on Thu Nov 12, 2009 at 03:39:03 PM EST

50 Senators + the President of the Senate could override the Byrd amendment anytime they want. But you know that.

Try getting a court to overturn the Senate not following the Byrd amendment and see how far you get.

Course, the first thing would have to be the Senate not following the Byrd Amendment. Oh wait, the Republicans violated the Byrd Amendment numerous times during the Bush Administration . .


Well (none / 0) (#21)
by Steve M on Thu Nov 12, 2009 at 03:53:56 PM EST

the fact that a dispute might not be justiciable doesn't mean the underlying law is unconstitutional.

I think 50 Senators can de facto overrule the Byrd Rule simply by overruling a point of order, because there's no one to appeal to except the body itself. But I don't think a majority of Senators could say "that law is off the books, we're just not going to follow it any more."


And vice versa (none / 0) (#22)
by Big Tent Democrat on Thu Nov 12, 2009 at 03:56:40 PM EST

Because it is non justiciable does not mean it is Constitutional.

BTW, the question as described in The Hill would be justiciable imo.

I think what is described is patently unconstitutional.


Okay (none / 0) (#24)
by Steve M on Thu Nov 12, 2009 at 04:03:47 PM EST

but there doesn't seem to be any precedent saying so.

It is well established, of course, that Congress may not bind future Congresses, but I've only seen that statement in reference to Congress attempting to constrain the actual lawmaking power of future Congresses. I've never seen it said that a duly enacted statute may not set forth rules and procedures that a future Congress is obligated to follow, absent a new statute amending the prior one.


: I do not understand your comment (none / 0) (#26)
by Big Tent Democrat on Thu Nov 12, 2009 at 04:15:25 PM EST

A congress passing a law on how a future Congress will proceed is precisely an attempt to constrain a future Congress.
As for what is justiciable and where are the precedents, I think the Bowsher case is very instructive, though not a square on precedent.
Beyond that, I have never heard of a the law writing authority being delegated in a way described in The Hill article. It seems completely and patently unconstitutional to me.
This is not fast tracking, this is delegation of a Congressional authority. Unconstitutional and the law this process would produce would be unconstitutional.
Now, what COULD happen is a sort of nod at such a law - to wit the law drafted by such an independent commission could be pro formaed through the appropriate legislative committees and brought to the House floor subject to a no amendment rule and a House vote. A Speaker of the House COULD do that. But they could not be bound to do that.
Similarly, in the Senate, motions to proceed to debate and final vote, invoking Rule 14, could occur in the Senate, but that would still require a 60 vote majority. In short, without either amending or ignoring Senate rules, such a "law" can not be enforced.
It is a dead letter. It is ridiculous. It is a disgrace.
What makes it ironic is all this fixation on 60 votes now for health care reform.
One of the funnier things is Conrad's threat to "attach" this to the health care bill. To do that, he will need 60 votes. Then it will have to survive conference and be passed by both houses again.
By then, the debt ceiling issue will have come and gone. The whole thing is bizarre.

Yup, I think you're right (none / 0) (#23)
by andgarden on Thu Nov 12, 2009 at 03:58:42 PM EST

This reminds me of the time some folks tried to change the rules of the California legislature by ballot initiative. They argued that they could because the Assembly and Senate passed their own rules by resolution, and ballot initiatives were supposed to be equal to legislation. CA Supremes said nuh-uh: it's convenient for the legislature to pass rules by resolution, but it's still up to them to set their rules. By inference, I don't think a current legislature could bind a future one with a statute. The Senate is more complicated because it's a continuing body, but that's just custom.


: I was a bit off about the court (none / 0) (#25)
by andgarden on Thu Nov 12, 2009 at 04:08:51 PM EST

but the cite is:
People's Advocate, Inc. v. Superior Court 181 Cal.App.3d 316.

Last time I looked (none / 0) (#10)
by shoephone on Thu Nov 12, 2009 at 02:30:09 PM EST

we already have a committee that oversees the writing of tax laws. It's called the Ways and Means Committee.

Maybe someone should notify Judd Gregg and his buddies.

How is this Signficantly Different than (none / 0) (#13)
by Dan the Man on Thu Nov 12, 2009 at 03:07:07 PM EST

the power given to the President under fast track legislation?

: The Presidency is (none / 0) (#15)
by Big Tent Democrat on Thu Nov 12, 2009 at 03:20:05 PM EST

a Constitutional office.
And yet, even there the limits exist. See the Supreme Court on Gramm Hollings Rudman.

What do you think the Federal Reserve is? (none / 0) (#27)
by SeeEmDee on Thu Nov 12, 2009 at 04:37:18 PM EST

It sure ain't 'Federal' but it dictates national economic policy. Not bad for a bunch of private banks, many of whom are foreign owned.

Kinda late to be peeing and moaning about 'Constitutionality' of ceding Congressional power...like, 95 years too late. Because that's just what happened, in 1914 Congress ceded it's responsibility for the nation's currency over to those private banks.

This is just gilding the lily.

: Federal Reserve (none / 0) (#28)
by Big Tent Democrat on Thu Nov 12, 2009 at 04:43:29 PM EST

does not enact laws, does not write laws, etc.
I wish people could stick to the facts.

Well (none / 0) (#29)
by Watermark on Thu Nov 12, 2009 at 05:20:15 PM EST

the congress could, at any time, take a vote and change the rules around the commission. Congress can't make a stone so big it can't lift it.

But there's no problem with setting ground rules that are generally to be adhered to.

Cut the onscene Defense budget by 20%!!!!! (none / 0) (#32)
by Doc Rock on Thu Nov 12, 2009 at 08:57:58 PM EST