The Budget Control Act Of 2011 Violates Constitutional Order

By Herbert W. Titus and William J. Olson


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 lawmaking 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 “bipartisan 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.

To provide more flexibility to finance the United States involvement in World War I, Congress established an aggregate limit, or ceiling, on the total amount of bonds that could be issued.  This gave birth to the congressional practice of setting a limit on all federal debt.  While Congress no longer approved each individual debt issuance, it determined the upper limit above which borrowing was not permitted.  Thus, on February 12, 2010, Congress set a debt ceiling of $14.294 trillion, which President Obama signed into law.

However, a different approach was used when BCA 2011 was signed into law on August 2, 2011.  Title III of the Act reads the “Debt Ceiling Disapproval Process.”  Under this title, Congress has transferred to the president the power to “determine” that the debt ceiling is too low, and that further borrowing is required to meet existing commitments,” subject only to congressional “disapproval.”  For the first time in American history, the power to borrow money on the credit of the United States has been disconnected from the power to raise revenue.  What St. George Tucker and Joseph Story stated were inseparable powers have now by statute been separated.

Under the new process established by this bill, if the president determines, no later than December 31, 2011, that the nation’s debt is within $100 billion of the existing debt limit and that further borrowing is required to meet existing commitments, the debt limit automatically increases.  The president need only to certify to Congress that he has made the required determination.  Once the president acts, the secretary of the Treasury may borrow $900 billion “subject to the enactment of a joint resolution of disapproval enacted” by Congress.

But this is not all. Title III also provides that if Congress fails to disapprove the debt ceiling increase in the amount of $900 billion, the president may again certify to Congress that he has determined that the debt subject to the new ceiling is within $100 billion and that further borrowing is required to meet existing commitments.  So the secretary of Treasury is authorized to borrow another $1.2 trillion.  Indeed, the secretary may borrow even more — up to $1.5 trillion if a proposed balanced budget amendment has been submitted to the states for ratification.  As was true of the first round of ceiling raising and borrowing, the president and secretary of the Treasury are constrained only by the possibility of a congressional resolution of disapproval which, itself, is subject to veto by the president.

By giving the president the authority to increase the debt ceiling and to determine that borrowing is necessary to meet the nation’s commitments, this bill turns the legislative process on its head.  According to Article I, Section 7, before an act can become a law, it must first be passed as a bill by the House of Representatives and the Senate.  Thus, any action taken to authorize the borrowing of money on the credit of the United States – whether such action is a formal bill or a vote or resolution — must be initiated by Congress and, then, presented to the President for his veto or signature.  This bill creates what it calls a “Debt Ceiling Disapproval Process” whereby the constitutional process is reversed.  Instead of Congress’s initiating the decision to borrow money, the president has the initiative.  Congress is relegated to the role of having to disapprove the president’s decision to lift the debt ceiling and authorize the secretary of Treasury to do what the Constitution says only Congress may do — borrow money on the credit of the United States.

Instead of constitutional order, in which Congress presents a law authorizing the borrowing of money to the president to sign or veto, the president presents to the Congress his determination that more money is to be borrowed, subject to the acquiescence or veto of Congress.

Second, the joint select committee on deficit reduction provision undermines the constitutionally established bicameral legislative process.

The Budget Control Act of 2011 establishes a joint select committee of 12 members, six from the House and six from the Senate.  Three of the six House members are appointed by the Speaker of the House and three are appointed by the House minority leader.  Three of the six Senate members are appointed by the majority leader and three by the leader of the minority.

Title IV of the Budget Control Act vests in that joint select committee the power to draft legislation to reduce the deficit by at least $1.5 trillion over the period of fiscal years 2012 to 2021.

Here, members of Congress yield their individual legislative duties and responsibilities to a “Super Congress” selected not by the people — but by Republican and Democrat leaders.

How many of these Congressmen and Senators campaigned on the platform that they would be elected, get sworn in, and then obediently surrender the power their constituents vested in them to the very same Republican and Democrat leaders who have created the problems they were sent here to solve?

To facilitate passage of the joint committee’s legislative proposals, Section 402 contains a number of procedural rules designed to expedite consideration of the joint committee recommendations.  Generally, the rules require action by both houses no later than December 23, 2011, on a joint committee recommendation that must be submitted no later than December 9, 2011.  Additionally, the section prohibits amendments to the proposed legislation and prescribes severe limits on the time for debate.  In short the procedural rules dictate unity of action of a majority of each house to accelerate adoption of the deficit reductions recommended by the joint committee within a two-week period of time.

The Constitutional order is quite different.  Article I, Section 1 vests the legislative power in a bicameral Congress composed of a House of Representatives and a Senate.  The members of each body are elected in two very different manners.  Each senator is elected by the vote of the people of an entire state, and each state has the same number of senators regardless of population.  The members of the House are elected by the people in congressional districts divided into districts, each state being guaranteed at least one representative and the others allocated according to population.

The composition of each house then is deliberately designed by the Constitution to represent vastly different majorities.  And for good reason.  As the Supreme Court observed in I.N.S. v. Chadha, 462 U.S. 919, 949 (1983), “by providing that no law could take effect without the prescribed majority of the Members of both Houses, the Framers reemphasized their belief…that legislation should not be enacted unless it has been carefully and fully considered by the Nation’s elected officials.”

The Budget Control Act of 2011 departs from that commitment vesting incredible power in the joint committee, virtually guaranteeing that deficit reduction legislation will be “carefully and fully considered,” if at all, only by six of 100 elected senators and 6 of 435 elected representatives.

These are not matters of constitutional form without meaning — the process was considered central to the founders.

In the debates on the need for a bicameral legislature, James Wilson warned: 

Is there a danger of a Legislative despotism?  Theory & practice both proclaim it.  If the legislative authority be not restrained, there can be neither liberty nor stability; and it can only be restrained by dividing it within itself, into distinct and independent branches.

Even the last defender of monarchy among the founders, Alexander Hamilton, warned that to “accumulate, in a single body, all the most important prerogatives of sovereignty [would] entail upon our posterity one of the most execrable forms of government that human infatuation ever contrived.”

Thus, as the Supreme Court noted in Chadha, James Madison “point[ed] up the need to divide and disperse power in order to protect liberty”: 

In republican government, legislative authority necessarily predominates.  The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and the common dependence on society will admitThe Federalist, No. 51. (Emphasis added.)

The Budget Control Act of 2011 does just the opposite.  Instead of ensuring action by two “distinctive bodies,” to be “exercised only after opportunity for full debate in separate settings,” the Act truncates the deliberative process by shortening debate, excluding amendments, and commanding uniformity.  See Chadha, 462 U.S. at 951.

Expedition was never the principal object of the legislative process created by the founders.  The object was to preserve limitations on the power of government in order to protect the liberties of the people.  Liberties can be lost when bad precedents are set in the atmosphere of crisis — and crises can, and often are, manufactured.   Precedents established can be hard to overturn.  Rights lost can be hard to regain.

The 74-page Budget Control Act of 2011 was not written over the weekend.  Yet it was posted on the House Rules Committee website with no fanfare, only hours before it was to be voted upon, breaking the pledge of the House Republicans to provide at least 72-hours advance public notice.

Contrived crisis, appeals to fear, emergency litigation, and suspension of Constitutional order — these are the indicia of abuse of power, leading to tyranny.

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35 Responses to The Budget Control Act Of 2011 Violates Constitutional Order

  1. Pingback: The Budget Control Act Of 2011 Violates Constitutional Order | Western

  2. Wolfire says:

    I posted your article in my Group called Fire Congress 2012 – Here:

    This is so the members can be informed but also because your “Share” button does not work therefore I could not post it to my Facebook and Tweet it. So you may want to fix this.

    Thank you for the great article.

  3. W.R.Monger says:

    barry has set himself up to be king and nobody did a damn thing to stop him… to top it off he will basically appoint 12 “knights” to enforce his rule. that means that one 2 or 3 states are represented by the senate and possibly only one state by the house depending upon how many reps a state may have. We the People no longer have a voice and if we try to use whatever we have left a law can be made to squash it without our knowledge or consent…we are so screwed and the worst part is that i and many like me fought against barry getting into office yet we must suffer the short sightedness of the sheeple.

    • Frank says:

      This can only lead to our having to utilize the 2nd amendment as our founding fathers intended it to be used. To throw off the shackles of a tyrannical government which is what it is becoming.

  4. James tibbs says:

    I fear that in the comming months this country is going to go through many a painful twist, and turn for the worse. I don’t think riots are out of the question. This marxist president and his cronies will push our society to the brink. Him and his group of twelve are an example of communism evolving in his design.

  5. Major Robert D. Cole (USA-Ret) says:

    So we are now subjected to a rule of 12 appointed hacks. Does the term “Oligarchs” come to mind. This is the manner in which all Communist regimes operate, with one dictator at the top and appointed oligarchs doing his bidding. The people be damned! I agree with James Tibbs…we may very well have to resort to riots in the streets to rid ourselves of these vermin which infest our Republic. I, for one, am prepared to man the barricades. It is well past time for We The People to return our government to the Constitutional limits imposed by the founders. It worked for nearly 200 years and it will work again.

    • sidewinderaz says:

      I’ll stand right next to you Major. I’ve been ready to put a stop to this nonsense for nearly twenty years now. Let’s roll!

    • Jim Cumber says:

      Major, I greatly fear that simple “riots in the streets” will NOT correct the Problem. I am seeing the possibility that another AMERICAN REVOLUTION just MIGHT be REQUIRED! At the very least, all the Representatives and Senators who voted for this Constitutional Travesty (the grossly MISNAMED, Budget Control Act of 2011, which is NO such thing, in fact, it is JUST THE OPPOSITE!) MUST be impeached! “IF THE FUNDS DON’T REACH, YOU MUST IMPEACH!” Ditto for the Bastard (“conceived outside of Lawful wedlock”) in the White House. Where oh, where is Caligula’s Pretorian Guard when we so desperately need them?! The more this insanity continues, the more I am feeling that, possibly, the folks who posted on YOUTUBE (since SCRUBBED) that Christ named (Luke 10:18) the Anti-Christ, using the Aramaic Name “Baraq O Bama”, were ABSOLUTELY RIGHT ON!

      • Sam Anderer says:

        Response to Jim Cumber and his statement “Ditto for the Bastard (“conceived outside of Lawful wedlock”) in the White House. ” He is following the behest of the banking elite to tear the country apart.

        I have had a fascination for words and their origins. Hence the following was a revelation: “A bastard shall not enter into the congregation of the LORD, even unto his tenth generation shall he not enter into the congregation of the Lord.” Deuteronomy 23:2.
        “The Hebrew word bastard does not mean an illegitimate child born out of wedlock, as it does in English, but is the Hebrew word mamzer, literally and positively meaning mongrel, i.e., a child of the union of an Israelite and any of the non-Israelites. Your Bible makes it plain that such mongrels are not to enter the Kingdom of Heaven prepared by Jesus Christ since the foundation of the world.” Excerpt from Star Wars, written by Nord Davis, Jr., published by the Northpoint Teams.
        Obama has shown he is of Esau-Edom, and one of Lucifer’w own.
        He hates every thing our country was founded upon.
        As for the Congress, if Obama was to sign an executive order disbanding both houses they would go quietly into the black oblivion.
        Sooner or later the prescription of a steel-jacketed lead capsule will have to be delivered. Sad to say they don’t understand any other message. And there are the militarized police to be concerned about. A very paranoid bunch.

      • nmgene says:

        Being a child born out of wedlock is not the childs fault. Christ changed things from the old testament. A child born of an Israeli and another race is not to blame for what his parents did. You wont find any of this in the New Testament. Christ said anyone who believes in him will be saved.

        Now when it comes to Obumer, we all know he is evil, and he hates the white race and is doing everything he can to destroy this (our country) He is not a legal constitutional President!!! Obumer, Biden, Pelosi and Reid along with most Damocrats and some Rinos have all commited TREASON, they need to be arrested, Tried, and publically hung as a warning to the rest. The Congress and Senate are scared to death of Obumer and are letting him violate the Constitution every day. It has to stop!!!!!

    • Anonymous says:

      Another term comes to mind, also – POLITBURO –

      What really galls me about the “Super Congress” (in addition to the negatives already pointed out) is that it is made up of an equal number of Dems and Repubs, regardless of the ratio that exists in either the House or the Senate. The Repubs control the House presently, but the Super Congress will NOT reflect that. This is a very bad law!

      Do we have anyone in Congress who will recognize the unconstitutionality and have the courage to speak up and do something?

  6. Dee Davis says:

    Can we not file a class action suit against this travesty to have it declared unconstitutional? What are our rights as citizens? Obama has said the Constitution is an inconvenience to him, and I guess this bill proves it. IT MUST BE CHALLENGED! I am not wealthy or I would initiate it…What can be done to stop this madness?

  7. Tim Powers says:

    Once again,our elected leaders had to “pass the bill so we know what is in it”…..this isn’t good….it’s another sad day for America!! Keep your powder dry Patriots,it’s time to lock and load

  8. Robert F. Hahn says:

    Great comments, Monger, Tibbs, Major Cole: One “revolution” tactic is for all working taxpayers (i.e., the less than 50% of the voting population that votes) to increase their W4 exemptions by one more than currently doing (that is “legal”, as if the demoncrats do anything legal or Constitutional). That would be an IMMEDIATE reduction in “revenue” to the sordid coffers of the bamma BADministration. Then later, April 15 be damned on a national scale !

  9. Barbara says:

    Just like Glenn Beck said a few months ago, this congress is giving away it’s power to one person and making themselves useless to this country. I am once again appalled at the very open destroying of our constitution without a word from the media or the courts, etc. I have watched Obama and his liberal czars and Soros and the union leaders take us step by step into oblivion…May God help us once again and save this great country of ours..I write, send emails, and do what I can to inform and protest but feel so powerless over this madman’s vile arrogrance in ruining the very country that has given him and his cronies the rights that they enjoy. Why would this legislative body fall for this crap? Are they so dumb or are they just part of the help to push us off a cliff??? I pray everyday for my country and I know the only thing that will stop all this nonsense is the diving intervention of God and all of us praying for Him to do just that….We must stand together-inform the congress we won’t put up with this mess and vote in new people who will stand up for the very oath they all take to protect the constitution. Thanks for the great article.

  10. Anonymous says:

    Boehner had the power to stop this repulsively repugnant activity. It matters not why. It is the ‘death rattle’ heard in the chest of the dying.

    The future of the nation is now dependent upon the removal of the ‘Boehner’ element with absolute adherence to constitutional governance or in the alternate implementation of the powers allocated to the citizen within the Second Amendment

    • Jim Cumber says:

      I can’t help but think of that old saw: “If the opposite of ‘Pro’ is ‘Con’, then the opposite of ‘Progress’ is ‘Congress’!” ;(

  11. Dr. Gerald Stephens says:

    Boehner had the power to stop this repulsively repugnant activity. It matters not why. It is the ‘death rattle’ heard in the chest of the dying.

    The future of the nation is now dependent upon the removal of the ‘Boehner’ element with absolute adherence to constitutional governance or in the alternate implementation of the powers allocated to the citizen within the Second Amendment

  12. Karin says:

    “And he will be GIVEN power” & “He knows his time is SHORT” From the “GOOD BOOK” “He has already lost”

  13. Albert W. L. Moore, Jr. says:

    If the RINOs in the U.S. House had thoroughly investigated Obama seven months ago, after the People gave them the power to do so, he would have been impeached and removed by now, and we would not have to deal with this monstrosity.

    • Anonymous says:

      I agree completely! We are continuing to pay a terrible price for the failure of Congress to launch investigations into O’s lack of eligibility. SHAME!

  14. DickK says:

    OK. So it’s unconstitutional! Unless you (the authors) are prepared to actually DO SOMETHING about it you might as well just SHUT THE HELL UP! Just what that this Congress and this Administration have done is not suspect of protocol?

  15. EdWestT says:

    Consider the comments made by Senators McCain and Kerry denouncing T(axed)E(nough)A(lready) party members, who’ve had the audacity to go against Senate and House leaders concerning the debt limit debate. The Committee of Twelve was formed to exclude upstarts such as Ryan, Bachmann and other newcomers in the Senate and House from the budget process because they are trying to stop excessive borrowing and spending. Taxpayers (voters) want it stopped, but the progressive socialists and their fellow travelers, in and out of government, don’t give a fig what we want.

  16. Mike Travis says:

    By this act, Obama has added one more act of Treason to the growing list of treasonous acts he has already committed. He must be charged with Treason now.
    Waiting for an election that can be corrupted in many ways is unacceptable.

    Visit the Jag Hunter website to learn how you can take definitive action against Obama by filing your own Criminal Complaint. I did. will you join me?

  17. tim says:

    Isn’t there a way for the people to impeach this scumbag by bypassing the bums in congress? Or getting rid of the congessmen who lie about what they will do when elected.

  18. Shannon Roberts says:

    I have a simple question and really doubt I get an answer, but here goes. WHAT CAN WE DO ABOUT IT??? WHAT CAN ANYONE DO ABOUT IT??? There has got to be someone, some way to stop this man,

    • Watchman_on_the_Wall says:

      Shannon, you are asking the key question that needs to be asked. Unfortunately, I’m not convinced that there is one in the conventional sense.

      The global banking elites have bought and paid for Obama and most of our elected and many of our highly positioned appointed officials in Washington and throughout the country. It’s vitally important that we all understand this reality. We have had a Shadow Government in place for a number of years now which rules by big $, intimidation and fear and which owns and controls the news that we receive through the MSM and our educational system. Unless the Rothchild-Zionists / global banking elites / Illuminati and Freemasons are purged from all of our government and banking institutions all at once, for every front man politician we take out, there will be five more waiting in the wings to take their places, we don’t know who to trust (because they all lie), so we haven’t solved the root cause of our problems. We must address the source of our problems or we are accomplishing nothing.

      Seeking to pursue things through the courts is likely to be equally fruitless. Our high government officials serve their globalist masters as do many judges. Our military services have been similarly infiltrated and corrupted. If patriotic citizens take to the streets to exercise our Second Amendment rights with firearms to take back our government and Constitutional rights by force, the elites have massive financial resources and well armed insurgents inside and outside our borders already, combined with ACORN and SEIU hired thugs who will see to it that our streets run red with blood and that the MSM depicts is as randoms acts of “far right extremists,” which will be used as an excuse to confiscate all firearms and ammo as the Nazis did in 1930s Germany and to declare martial law and abolish the Constitution and all remaining rights entirely. If patriotic citizens don’t take to the streets, which is the most likely scenario, the elites will have taken over America with barely a whimper. Evil tyrants don’t respond to peaceful demonstrations, especially when they already control the media and all tools of propaganda to misrepresent the facts to the rest of America. If you doubt this, just look at how little has changed in Egypt, Libya and Syria in recent months since the uprisings in those countries in February (all of which were orchestrated and coordinated by the elites). He with the most gold and firepower always wins. That’s the bad news.

      The good news is that God is still as firmly in control of the world and of our lives as He’s always been. This time in history has been prophesized and predicted in the Bible for thousands of years. We are in the last days of the end times predicted in many places in the Old and New Testaments. Lies, deceits and betrayals are commonplace. But Jesus came to testify to the truth and to testify to the infallibility and trustworthiness of the Bible. At times like these in history when all looked bleak, men turned to God and Jesus for help. God’s calling to us to turn to Him now and put our trust in His son Jesus, stand against evil and rely on God and Jesus to do what we cannot do on our own. The God of the Bible is forever faithful, trustworthy and true. Relying on ourselves alone is not going to be sufficient now. Are you ready? Are you ready for the return of Jesus and the rapture of His true believers? If not, now would be a good time to get ready and to surrender and submit to Jesus as your Lord, King and Master in everything.

  19. Harry G. Bandemer says:

    I have been following this matter for sometime. Your publication is way ahead of the so-called mainstream media; congratulations for being so perceptive. An organization with standing needs to be enlisted to challenge this measure which further erodes the Constitution. Remember, the President’s oath upon taking office reads:
    “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will, to the best of my Ability, preserve, protect, and defend the Constitution of the United States.” (Article II, Section 1, Clause 8)
    Similarly, Article VI, Clause 3, bounds by oath, each member of the U. S. House of Representatives and the U. S. Senate to support the Constitution.
    Americans wake up before you lose your Constitution by fiat! Our political leaders, Republican and Democrat alike are oblivious of our Constitutional history and need to be
    taken to task for failures to act within our Constitutional framework.
    My thanks for making this article available to the public.

    Harry G. Bandemer

  20. Pingback: Strangers in Our Homeland | Western

  21. Pingback: Is it important to understand the Marxist assault on the foundations of our system? « A Nation ADrift-Why?

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