Friday, November 30, 2012

Should Congress Delegate Its Authority to Increase the National Debt Ceiling?

John MarshallThere are Supreme court rulings that support as well as oppose allowing Congress to delegate a broad range of its law-making power to bureaucracies within the Executive branch. The Supreme Court stated in US v. Shreveport Grain and Elevator Co., “That the legislative power of Congress cannot be delegated is, of course, clear. But Congress may declare its will, and, after fixing a primary standard, devolve upon administrative officers the "power to fill up the details" by prescribing administrative rules and regulations.” In 1825 Chief Justice John Marshall stated in his opinion in Wayman v. Southard, that Congress may not delegate powers that “are strictly and exclusively legislative.

In this instance, the delegation of authority to raise the national debt ceiling, this an authority specifically granted to the House by the Constitution (Article 1, Section 8, Clause 2). Were this authority to be delegated to the executive branch I believe it would represent a meaningful change to the distribution of power laid out in the Constitution. That said, let’s look at the “positive” effects of Congressional delegation of authority (i.e. allowing bureaucracies to create law via regulations) in general:

  • More laws can be created because the number of lawgivers have been increased exponentially
  • Elected lawmakers now have someone to blame besides themselves for the negative impact of some regulations.
  • An increase in the need for intervention by members of congress to help “fix” issues or “get” exceptions for constituents and supporters by working the “system”.
  • This increased complexity increases the value of longevity in office because experience is required to navigate bureaucracies in order to mitigate problems created by regulation.

Clearly, these are “positive” effects only from the perspective of members of Congress who wish to remain in power and seek to fund this effort by doing favors for those with money.

In the specific case of allowing the President to raise the debt limit the unelected executive bureaucracy would have not only have the power bind our hands through its broad regulatory (i.e. lawmaking) powers it would able limit our future potential by burdening us and our children with debt that can never be paid.

I’m reminded of a rather sad story experienced by the Benthin’s, friends of mine in India. As a “retired” couple they had moved to Bangalore, India sometime in the late 1990’s. They hired a housekeeper and over time got to know her family well. When the housekeeper’s daughter married the young couple borrowed a modest amount of money to pay for the wedding. They were too poor for a normal bank to lend the money so they borrowed from “loan sharks” at an interest rate which ensured that they would never be able to pay off the principle. Although this is illegal in India, my understanding is that it is a common practice of the criminal underground to prey on the poor in this manner.

My friends decided to help the couple by paying off the loan for them and then hired the them to help with a small farm. The couple were well paid but unfortunately, when the husband’s mother was ill and needed extra care the couple again went to the “loan sharks” for money and ended up again being in a situation where they would never be able to pay off the principle. This time the Benthin’s did not step in and help.

It is easy to rationalize going into debt to cover an immediate “need”,  however, Congress should not make the process easy. As illustrated in the Benthin’s failure to make a long-term difference, America’s problem with money cannot be solved by a benefactor but rather the solution must arise from a change in attitude by its citizens (us). This would be manifested by a willingness to accept and support a significant change in the spending habits of the Federal government. This of course is easier said than done as borrowing from the future is easy because the consequences are not immediate.

Robert Yates or BrutusPerhaps we should have taken the advice of “Brutus”, one of the Anti-Federalists—From October 1787 through April 1788 a series of letters were published in the New York Journal under the pseudonym Brutus that acted as a counterpoint to The Federalist (written by Hamilton, Madison, and Jay). Most scholars believe Brutus was Robert Yates, a New York judge and delegate to the Philadelphia Convention of 1787. In Brutus #8 Yates argues for putting constraints on the ability of Congress to borrow money:

“The power to borrow money is general and unlimited, and the clause so often before referred to, authorises the passing of any laws proper and necessary to carry this into execution. Under this authority, the Congress may mortgage any or all the revenues of the union, as a fund to loan money upon, and it is probably, in this way, they may borrow of foreign nations, a principal sum, the interest of which will be equal to the annual revenues of the country. — By this means, they may create a national debt, so large, as to exceed the ability of the country ever to sink. I can scarcely contemplate a greater calamity that could befall this country, than to be loaded with a debt exceeding their ability ever to discharge. If this be a just remark, it is unwise and improvident to vest in the general government a power to borrow at discretion, without any limitation or restriction.

“It may possibly happen that the safety and welfare of the country may require, that money be borrowed, and it is proper when such a necessity arises that the power should be exercised by the general government. — But it certainly ought never to be exercised, but on the most urgent occasions, and then we should not borrow of foreigners if we could possibly avoid it.

“The constitution should therefore have so restricted, the exercise of this power as to have rendered it very difficult for the government to practise it. The present confederation requires the assent of nine states to exercise this, and a number of the other important powers of the confederacy — and it would certainly have been a wise provision in this constitution, to have made it necessary that two thirds of the members should assent to borrowing money — when the necessity was indispensable, this assent would always be given, and in no other cause ought it to be.”

Should the President be given the power to raise the debt limit we would be making it easier to continue the escalation of our debt and more difficult to curb spending. We would end up with two branches that could raise the debt limit without strong checks to put a brake on the practice. The need for compromise would be diminished and the important Constitutional principle of separation of powers weakened.



  1. Is the portrait of Robert Yates used on the Friday Nov 30, 2012 page correct? A docent once remarked that "no portrait exists" for Yates. Just curious - no nit-pick intended.

  2. Wayne. I have no idea as to the accuracy of the portrait in my post other than it claims to be Robert Yates. There were other portraits I found but they were also attributed to John Lansing. This was the only one were there were no conflicts. Here's the link: that has the picture.

  3. Thanks Rod! I'm compiling a photo book (just personal not commercial) having just recently completed visits to the grave (or cenotaph) of each of the 55 delegates to the Constitutional Convention of 1787. Yates and two others are without portrait - I'll pursue this lead further. Best Regards - Wayne

  4. @Wayne and Sally ... did you ever find an authentic picture of Robert Yates?


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