“Super Committee” Supersedes Constitution?

With a current national debt of approximately $14.6 trillion that will escalate to about $15.4 trillion by the end of FY 2011, the United States is on a road much like that of Greece.  It is time to solve our nation’s problems; we are already behind and further delay cannot be tolerated.  Granted, America has had a national debt since its founding; yet, under Hamilton’s leadership, it was paid off by 1840. Now, it is out of control.  Hamilton wrote in a letter to William Plumer, “I, however, place economy among the first and most important republican virtues, and public debt as the greatest of the dangers to be feared.”  Problems must be solved in a responsibly, and action must be taken immediately.

In an attempt to address the danger of excessive public debt, Congress passed the Budget Control Act on August 2, 2011, which includes a provision for establishing the Joint Committee on Deficit Reduction, or “Super Committee,” composed of twelve members from the House and Senate, six Republicans and six Democrats. Appointed by congressional leaders, they must submit a plan by November 23, 2011 to cut $1.5 trillion from the national debt over the next decade. The plan does not allow debates or amendments, and if not passed by January 15, 2012, $1.2 trillion will automatically be cut from “defense and non-defense programs.” The “all or nothing” plan gives twelve people power that surpasses that of Congress; provides for proceedings that are not open or transparent to the public; assumes that equal division of Republicans and Democrats can solve a problem; allows taxes to not originate in the House; opposes the method in which a bill becomes a law; and ultimately changes the way the Founders intended Congress to function. All of these aspects raise serious questions about the constitutionality of the Budget Control Act, and the Founding Fathers would not approve of this plan.

The first problem is that the Super Committee enhances legislative oversight and by appointing six Democrats and six Republicans, assumes that parties exist in the Constitution. Nowhere in the Constitution does it state, “There will be equal representation from both Republicans and Democrats,” or that parties even exist. Though a minority, there are Independents in Congress.  It ignores not only most of Congress, but demeans the election process: Americans who voted for their members of Congress who are not represented in the Super Committee.  My congressman cannot make decisions, which raises the question, “What’s the value of elections?”Adams states in Thoughts on Government that the assembly should be “an exact portrait of the people at large.”  This committee is only a speck of the portrait.

Only two percent of the Congress will make decisions that impact the country.  This is not representative democracy. Certain members of Congress may have been funded by interest groups, and these collective action organizations may not be considered in budget agreements due to lack of representation. This does not provide incentive for interest groups to act to achieve their common or group interests. Madison warns of factions in Fed. 10, claiming that they can be dangerous, but are also necessary for a democracy to exist.  The only way to remedy factions is to either make everyone thing the same thing (impossible), or to suppress their opinions (tyrannical).  The latter is occurring in our country. Ignoring the will of the people by appointing a select few officials affects the final outcome of taxes and spending cuts, impacting the entire nation, and may give the American people results they did not want and did not even vote for in the first place. One may argue that all congressmen participate by voting on the final plan, but this statement is invalid since it does not permit amendments; it is a forced, “yes or no” choice.

The Super Committee gives ample power to the eleven States who happen to have representatives on the committeeStates represented in the committee include Arizona, Ohio, Pennsylvania, Michigan, Texas, South Carolina, California, Maryland, Washington, Massachusetts, and Montana.  Considering that there were originally thirteen colonies, eleven states would not have even been sufficient during America’s founding. Article I, Section II of the Constitution states, “The number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative.” Article I, Section III states that there will be “two Senators from each State.” Thirty-nine other states have been left out of the process.

Even if one can accept that states can be left out of the process, the twelve appointees may have a bias toward special interest of their states.  It is not hard to imagine that the twelve members represent states where the biggest military contractors are located, including Lockheed Martin, General Dynamics Corp, Raytheon Co, and Boeing Co. Although members of Congress want to best serve their country, they may not want to cut defense because that will cut jobs from their state.

The Super Committee is unlawful because the power to tax is with the House, not with a group of twelve people, half of whom are senators. Article I, Section VII of the Constitution states, “All bills for raising revenues shall originate in the House of Representatives.” his implies the entire Congress, not six representatives and six senators.  The Framers intended the House to regulate taxation, not the Senate composed of 100 members.  Ron Paul expressed his distress with the Super Committee via the revolutionary adage “no taxation without representation” because the Committee excludes about ninety-eight percent of Congress. Article I, Section VIII, Clause I of the Constitution states, “The Congress shall have Power to lay and collect taxes, duties, imposes, and excises, to pay the Debts.”

The Super Committee defies the method in which a bill becomes a law.  It does not allow for debate, amendments, provisions, or a Senate filibuster.  The Constitution does not specifically permit a filibuster, but a member of the senate or group of senators may delay action by talking for as long as possible until a “cloture,” or three-fifths agreement is reached.  Since filibustering is not allowed, the Super Committee imposes a time limit on legislation.  A “yes or no” answer gives Congress too much authority and does not allow “Reconsideration” or “Objections.”  Article I, Section VII states that after the president vetoes a bill, the House and Senate may “proceed to reconsider it,” or make provisions.  Provisions are not allowed in this situation. 

Judge Napolitano puts it curtly in a recent Fox interview:

Members of the Senate and members of the House have the opportunity under the Constitution to debate items that are sent to them and to modify items that are sent to them. To force them to vote just yes or no with no debate, not to follow the rules of the House, which permits amendments, not to follow the rules of the Senate, which permits a filibuster, is such a substantial removal of the authority the Constitution gave them that this legislation is treading in waters that might not be constitutional.”

A valid argument may be that Congress has the ability to act given the situation’s precedence, especially since the Elastic Clause states Congress can “make all Laws which shall be necessary and proper.” Madison heavily supports the Elastic Clause in Federalist No. 44, “No axiom is more clearly established in law, or reason, than that wherever the end is required, the means are authorized.” The Budget Control Act that contains specifics of the Super Committee was passed by Congress and signed by President Obama, making it seem permissible. Simply put, this legislation is a bill within a bill, posing the question, “Can Congress pass a bill that makes another bill – however unconstitutional – legal?” This means that Congress would be able to pass bills like this in the future that contain such extreme measures and seize power from the other two branches because it is somehow “constitutional.”  After escaping the monarchial rule of King George III, the Founders certainly did not intend for this to occur.

It does not call for adequate and fair representation, and assumes the only way to fix a problem is through forced bipartisanship between Republicans and Democrats.  With proceedings and negotiations going on behind closed doors, the Americans may not feel like they have a role.  Moreover, the Committee’s recommendations cannot be amended and does not allow filibusters or any sort of debate to occur. It usurps power from all three institutions to not just Congress, but more specifically to twelve members. Although the Necessary and Proper Clause may justify Congress’ actions in certain situations, the intricacies of the Budget Control Act do not deem it constitutional; a law cannot be passed that changes the entire way the Founders intended Congress to operate. The Supreme Court needs to review the constitutionality of the Budget Control Act.

Melanie Wilcox