Constitution Daily

Smart conversation from the National Constitution Center

Is the debt deal constitutional?

August 3, 2011 by Lyle Denniston


In approving the new budget and debt-ceiling bill signed by President Obama on Tuesday, Congress pushed close to the limits on what it could do, but seems to have preserved those constitutional boundaries. 

While seeking to put on President Obama the political onus of lifting the ceiling on government borrowing power, Congress may have managed to avoid what the Supreme Court has explicitly forbidden:  It did not hand over its legislative authority to the White House.

For Constitution-watchers, the dividing up of the function of raising the debt limit means more than the new measure’s mandate that Congress must – before year’s end – cast an up-or-down vote in both houses on a proposed constitutional amendment to require a balanced federal budget.  That proposal, even if it got the 290 votes needed in the House, has almost no chance of getting the necessary 67 in the Senate.

While both houses of Congress would have to actually approve a balanced budget amendment under one scenario in the new budget package, that is only a fallback requirement if a new “super committee” of House and Senate cannot come up with deep enough cuts in future spending allowances.  The bill has incentives to keep that committee from failing.

No one is likely to raise any doubt about the constitutionality of the agreement in the budget deal to give that large assignment to a joint committee.   Each house, constitutionally, is in charge of writing its own rules, and it customarily hands off bill-writing chores to committees.

But there may be lingering uncertainty about the constitutional regularity of what the bill did with future increases in the debt ceiling.  In the final negotiations between President Obama and congressional Republican leaders, each side wanted something, and each side got something, on the debt ceiling issue.  The result was a truly novel arrangement.

The President got an arrangement under which three increases in the debt ceiling, over more than a year into the future, could occur without the nation being pushed again to the brink of defaulting on its debt.  And GOP leaders got an arrangement under which the President would be primarily responsible – at least in a political sense – for raising the ceiling.

How it will work

What resulted is Title III of the new bill, which includes this telling label of the powers it granted: “Presidential modification of the debt ceiling.”  Merely by telling Congress formally – prior to this December 31 --  that the government needs more borrowing power, the debt limit would rise by $400 billion.  The requested increase could go up another $500 billion, to a total of $900 billion, subject to a “joint resolution of disapproval” – that is, a congressional veto, subject, to be sure, to being vetoed in turn by the President.

Because the President could veto the veto, and because it would take a two-thirds vote in each house to override his veto, the President presumably would get the added $500 billion. This same potential process – presidential proposal, congressional veto, presidential veto, failure to override – could be repeated so that the debt limit increase could rise by another $1.2 trillion. 

Added borrowing power could go on up to $1.5 trillion if one of two alternatives occurred: both houses of Congress passed and sent to the states a proposal balanced budget constitutional amendment, or the congressional joint committee approved cuts to match or exceed the added increase.  

Because Congress would have specified exactly what the maximum increases in the debt ceiling would be, and how they would be reached, the President’s assignment to put that into actual effect probably would not be considered an invasion of the legislative role  – although that is not entirely certain.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy.  He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.

Sign up for our email newsletter