When the Founding Fathers gathered in Philadelphia in May 1787 to replace the discredited Articles of Confederation, no American coins existed. Delegates had to switch their money to Pennsylvania pounds and shillings and expressed humiliation that, as a nation, the United States could not pay its debts.
They were also wary of executive power as exhibited by the conduct of the royal governors so recently cast aside. Delegates were determined to create a national government that could raise its own money but were adamant about keeping spending and taxing powers in the hands of the new legislature. As Benjamin Franklin put it:
"It was always of importance that the people should know who had disposed of their money, and how it had been disposed of. It was a maxim that those who feel, can best judge."
Now Congress is on the verge of a budget-balancing act that would stand those priorities upside down. It would give the president the chore of automatically cutting federal spending if two unelected sets of bureaucrats -- the Office of Management and Budget (OMB) and the Congressional Budget Office (CBO), with final review by a third set at the General Accounting Office -- conclude that specifically targeted reductions in the federal deficit are not being met.
Many scholars and legal experts say the scheme is of dubious constitutionality. But with the debt ceiling scheduled to top $2 trillion this week and congressional elections on the horizon, deficit fever is running high on Capitol Hill.
"I don't think it's a good bill, but it's become a political necessity," said Washington attorney Lloyd N. Cutler, a former White House counsel who heads a study group called the Committee on the Constitutional System. "We've got to have downward pressure on the deficit. Nobody's got the courage to vote against it."
Constitutionally, the first big issue, he said, "is whether Congress can delegate this vast amount of power. This is a broader delegation than anything I can think of since the NRA National Recovery Administration ."
Established in 1933 under President Franklin D. Roosevelt to administer "fair competition codes" in each industry during the Depression, the NRA dispensed Blue Eagle seals of approval and urged boycotts of uncooperative businesses until the Supreme Court ruled in 1935 that the system was an unconstitutional delegation of legislative power to the executive branch.
Cutler said he does not want to guess how the present Supreme Court would vote on the budget-balancing bill. As a Congressional Research Service study by American public law specialist Richard Ehlke noted, "The Supreme Court has not struck down a delegation of power to the executive since the 1930s."
House Judiciary Committee Chairman Peter W. Rodino Jr. (D-N.J.) said the measure is unconstitutional, especially in light of a 1983 high court decision invalidating legislative vetoes. Essentially, the court held that Congress could act only by passing a law and could repeal a law only by passing another, either signed by the president or passed over his veto.
Under the budget-balancing plan, Rodino protested in a recent letter to House colleagues, "the president is required to permanently cancel outlays of authorized and appropriated amounts which were enacted into law in accordance with constitutional procedures . . . .
"Though its language merely directs the president to issue an 'order' requiring a reduction in expenditures . . . the effect of these so-called orders is to repeal duly enacted statutes. The proposal attempts to authorize the president to undo a law by something less than a law -- and is thus unconstitutional."
Others, such as Harvard law professor Laurence W. Tribe, voiced more concern about the CBO's involvement in the so-called "triggering" process. Under a 1976 Supreme Court decision, appointees exercising significant authority pursuant to law must be appointed by the president.
"Since the CBO doesn't have that character, there is a very serious risk that any court looking at this would say it's a violation of the separation-of-powers doctrine," Tribe said.
Ehlke, however, said the CBO's role would appear to be simply "fact-finding and information gathering," functions of the kind that the court said in 1976 do not require presidential appointment. He also said budget-cutting power delegated to the president "would seem to contain sufficient limits and guidelines to pass constitutional muster."
An early court test is likely under provisions of the bill giving members of Congress standing to sue. Washington lawyer Alan B. Morrison, who directs the Public Citizen Litigation Group and won the legislative-veto decision, said he is preparing a court attack on behalf of interested members.