Constitution requires Congress to set debt limit


The US national debt is near its statutory limit of $ 28.4 trillion, and Congress must act this month to prevent the government from defaulting on its financial obligations. Lawmakers plan to increase the limit or, as Democrats prefer, simply suspend it for a period of time and allow the Treasury to decide how much debt to incur to meet federal financial obligations.

But although both-party-controlled Congresses have used the latter approach in recent years, it is unconstitutional. Article I, Section 8 gives Congress the power to “borrow money on credit from the United States.” It does not allow the full delegation of this essential legislative power to the executive.

For a century and a half, Congress properly exercised its borrowing power by prescribing the many details, including amounts, of the various types of debt to be issued by the Treasury. In 1939, Congress moved to legislate an aggregate debt ceiling that effectively allows the Treasury to borrow money up to a certain amount, without Congress having to vote each time the government issues a package. specific debt instruments.

The Treasury undoubtedly has a lot more expertise than Congress on how to issue debt, so it’s appropriate to leave the details to the executive. The debt limit ensures that ultimately it is Congress that determines the amount of national debt at any given time. The suspension of the limit, on the other hand, removes all withholding from the Treasury and gives it no “intelligible principle” on which to exercise its delegated functions. The Supreme Court requires such a principle for any delegation of power from Congress to a federal agency.

The doctrine of “non-delegation” was first formulated by Chief Justice John Marshall in Wayman v. Southard (1825): Congress, he declared, cannot delegate “strictly and exclusively legislative powers”. The judges then established the “intelligible principle” test to determine whether, in a given case, Congress has overstepped the line in delegating its authority to the executive.

As Judge Elena Kagan said in the court’s most recent non-delegation case, Gundy v. United States (2019): “The constitutional question is whether Congress has provided an intelligible principle to guide the use of discretion by the delegate. This case involved a broad delegation of powers to the Attorney General to retroactively impose certain registration requirements and related sanctions on sex offenders who have served their sentence. The judges disagreed on whether the relevant law met this test and on the meaning and usefulness of the term “intelligible principle” itself.

But, no matter what “intelligible principle” means, it cannot mean any principle at all. And this is what a simple “suspension” of the debt ceiling implies: the Treasury is allowed to borrow as much money as it deems necessary and to make the ultimate political choice of increasing the national debt. . This is the most important question for anyone taking out a loan: how much is too much. Only Congress can make this choice, and it cannot escape this politically dangerous responsibility by returning the responsibility to the Treasury. As Judge Neil Gorsuch wrote in his Gundy dissent: “Abdication is not part of the constitutional concept. “

It is not enough that Congress appropriated the money the treasury is forced to spend. The power to spend money through appropriation is separate and distinct from the power to borrow money. In principle, credits can be financed only from tax revenues. If revenues are insufficient to meet the appropriations, Congress has the power – and the duty – to raise taxes, cancel or revise the program, or incur debt to pay it off. All of these legislative functions are essential that legislators cannot delegate without an intelligible principle.

The constitutionally required principle of intelligibility must be included explicitly in legislation authorizing a specific delegation of power from Congress. Extrinsic limitations – for example, the reality that, despite the suspension of the debt ceiling, the Treasury cannot engage in unlimited borrowing because market discipline forces would not allow it – will not suffice.

In the context of the overall architecture of the separation of powers, the Framers established the power of the stock exchange as the central authority of Congress. This power comprises several distinct elements prescribed by the Constitution: the tax and expenditure clause, the loan clause and the appropriation clause, all of which require separate and responsible exercises of legislative authority. In exercising these powers, it would be unconstitutional for Congress to allow the treasury to raise taxes or spend unlimited money. It is the same for getting into debt. Congress should properly discharge its constitutional obligations and increase the debt ceiling by a specific amount.

MM. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House attorney’s office and the Department of Justice under Presidents Reagan and George HW Bush.

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