an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Apparently, Mitch McConnell's secret plan to avoid a default is to delegate to the President the unrestricted power to cut whatever governmental programs he wishes, with no consultation with Congress, so long as his cuts reach the magic number of $2.4 trillion. If he does that, then he can also unilaterally raise the debt limit. This gives new meaning to the notion of "delegation run riot."
How could any "conservative" support this enhancement of "constitutional dictatorship" and unilateral powers over important governmental programs? But, of course, that's a rhetorical question, because in no serious sense is McConnell or the modern Repubulican Party "conservative." He and his collegues are truly right-wing radicals and should be described as such. Posted
by Sandy Levinson [link]
The simple answer to your question is no.
BTW, McConnell is part of the establishment GOP. Rand Paul and the Tea Party knocked off his hand picked candidate in the GOP primary last year.
I just did a quick scan around the net. The conservatives are hammering McConnell's political stunt to get our President to actually offer a detailed deficit plan. Admirable goal, but dumb means to achieve it.
How could any liberal support an unconstitutional dictatorship, where the President simply usurps the power McConnell proposes to legally delegate to him? And yet, many do, under the pretext of the 14th amendment.
I'd like to backtrack and note that the GOP lead congress passed the omnibus 2011 fiscal year spending bill in March which appropriated monies over the debt limit. With full knowledge and intent to play the debt limit thing for all it was worth later. This is a sad negation of governance, throw in cynical and cowardly.
It took some mighty work on their part to cut, allegedly, $65 billion in spending for the last half of FY 11 which amounted to a few percent of the total FY 11 deficit. They tried for $100 and couldn't get it but that too was pathetic. In other words they are incapable of cutting appropriations now, it' always later.
Implicit in letting the limit stand is that all spending of appropriations would then be under the discretion of the President. To say the least this is extra constitutional. So any entertainment of freezing the limit by congress is a de facto abrogation of their constitutionally mandated appropriations duties. The whole think is already a constitutional wasteland. Aside from the quickly receding government of the constitution it is governance itself which is failing. No state, totalitarian or Democratic can abandon such basic aspects of governance and remain standing for long.
I am not trying to defend McConnell's plan, which sounds like a bad idea, but he is not proposing to give the President the power to cut anything. I believe that the President would be required to identify the cuts, but it would be up to Congress to enact them.
At this point, though, I am not sure that I see any plan that has a chance of passing (including the so-called "clean" raising of the debt limit, which can't pass and would be vetoed by the president even if it could). So who has a better idea?
Say the law is passed and gets to the stage of the two-thirds override, requiring Obama to list hypothetical cuts. Would a law that requires the President to do/say something that has no legal effect even be constitutional? Sure, Congress has the power to delegate for actual effect, but to require symbolism only seems like it might be a separation of powers issue, or at the very least an arbitrary or capricious law. Has there ever been anything similar before?
In the sense that one limit on federal power after another has fallen to judicial sophistry. The interstate commerce clause, for instance, now effectively reads, "To regulate."
We're in the end game for this constitution, the political class are getting tired of even pretending to follow it. They no longer care if their excuses for violating it persuade, as this "section 4" nonsense demonstrates.
"In the sense that one limit on federal power after another has fallen to judicial sophistry."
The implication of your remark is that before the 1930s, there was some better position on the Constitution front.
That is, when blacks were segregated, various works of literature couldn't be sold, the 2A not protected even more than you think it horribly is today, the third degree and other criminal tactics were readily ignored by the Supreme Court, freedom of association was lacking, the government favored Protestants over Catholics in public schools, etc.
Again, ignore it all you want, but I ask: what about these areas? Has the Constitution gotten worse since 1930? I can see if you said that the government NEVER followed the Constitution, but just in a different way today.
But, even if I agreed with you on the Commerce Clause, do improvements in those areas not count? Are they trivial?
If you care about the Constitution, you have to care about them too. If "after 1930" is a BIG problem, apparently you think the days of segregation et. al. was better for our constitutional system.
I did a quick scan around the net. Conservatives are hammering McConnell, a political trick to get our President to provide a truly comprehensive plan for the deficit. An admirable goal, but how stupid to realize it.
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