More on the Temporary Debt Limit Waiver

The House duly passed the debt limit waiver bill 285 to 144, with 33 Republicans and 111 Democrats voting no. House GOP leaders duly made statements about what a great achievement ‘no budget no pay’ was, perhaps an attempt to distract from how great a climbdown the main part of the bill was.

Most lawyers I’ve communicated with took the view that most every court, and certainly the Supreme Court, would not choose to declare the debt ceiling waiver unconstitutional — even if both mechanistic and good-faith application of current severability doctrine would suggest that it should. That’s probably correct predictively, which says something about the importance of realpolitik in Constitutional interpretation. Although anyone who ever read Dames & Moore v. Reagan should already know that….

Meanwhile Seth Barrett Tillman has proposed a nice way to avoid the severability question altogether. Since the text of the 27th Amendment says “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened” the remedy for a bill that violates this provision is an injunction staying the pay terms until the next election. Under this elegant formulation, the pay provision of the bill is not held to be unconstitutional as such, just given no effect until, in this case, it has no remaining effects. Very neat.

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One Response to More on the Temporary Debt Limit Waiver

  1. Altoid says:

    Of course, the way to make it *really* punitive and avoid the whole 27th amendment question would be to suspend pay for congressional staff. Self-defeating from Congresscritters’ point of view, perhaps, because congress wouldn’t be able to do a damn thing after that, but a threat that would catch their attention, and would supercharge incentives for the people who do the real negotiating.

    Or, you know, they could require themselves to suspend all fund-raising activities of all kinds, or put all their political funds into an untouchable escrow account during the period.

    For all the good a budget resolution actually does, though, this whole line of talk is a lot of hooey, fit only for the amusement of the self-absorbed commentariat. The time to worry about deficits and debt is at appropriation time– if you approve the spending, you are by necessity implicitly approving whatever means of payment are needed. Unless, of course, you plan to be a deadbeat; that would be something close to fraud, I think, and surely nothing our worthy representatives would intend.

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