Herb Titus and William Olson: The Budget Control Act Of 2011 Violates Constitutional Order

In a Constitutional Republic of the sort that we thought we had, the process by which laws are made is at least as important as the laws that are enacted.  Our Constitution prescribes that law-making process in some detail, but those who voted for the “Budget Control Act of 2011” (“BCA 2011”) were wholly unconcerned about trampling upon required constitutional processes on the way to the nirvana of “bi-partisan consensus “to avert a supposed crisis.  At least two titles of the bill now being rushed through Congress are unconstitutional.  

First, the “Debt Ceiling Disapproval Process” in BCA 2011 Title III unconstitutionally upends the legislative process. 

The Constitution’s Article I, Section 8, Clause 2 vests in Congress the power “to borrow Money on the credit of the United States.”  As two of America’s leading constitutionalists, St. George Tucker and Joseph Story, observed, the power to borrow money is “inseparably connected” with that of “raising a revenue.”  Thus, from the founding of the American republic through 1917, Congress — vested with the power “to lay and collect taxes, duties and imposts,” — kept a tight rein on borrowing, and authorized each individual debt issuance separately. 

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