Debt Ceiling Issues - Is McConnell's Proposal Constitutional?

I've been busy studying for the bar, so I haven't really had a chance to comment on the debt ceiling shenanigans. I think the whole thing is ridiculous, but I've long given up hope that President Obama is a competent politician, even assuming he doesn't actually want the same thing as the Republicans. As a result, I lack the desire to say much about it.

But then something interesting happened last week (and due to aforementioned bar study, I haven't gotten around to posting this until now): Senate Minority Leader Mitch McConnell proposed a law, which to my mind, reads like a Constitutional Law issue spotter you might see on a first year final exam:

1. Next month Obama would receive approval to raise the debt ceiling $700 billion.
2. A "resolution of disapproval" would then be taken up by Congress on an expedited basis (i.e., no filibusters allowed).
3. If the resolution passes, Obama can veto it.
4. If he vetoes it, it requires a two-thirds vote of both houses to override.
5. If there's no override, the debt limit is increased, but Obama would be required to lay out a "hypothetical" set of budget cuts totalling $700 billion.
6. This would be repeated (in $900 billion increments) in the fall of 2011 and summer of 2012.

Let's go in order. (1) This is a delegation of power to the executive. Such a delegation requires an "intelligible principle." This delegation is very specific: the President, when necessary, may raise the debt ceiling. Ok, this part seems constitutional. Note that a common theoretical complaint about delegation to government agencies is that Congress gets to wash its hands of unpopular decisions that they would otherwise have to swallow. That is transparently the case here. It's actually the whole point of this whole scheme - to make Obama look bad by owning the debt ceiling. However, that does not make it unconstitutional.

(2)-(4) This is Congress passing a bill, a potential Presidential veto, and then a 2/3 override. That is a completely normal bill. In fact, that's the reason it's constitutional. The Supreme Court ruled in INS v. Chadha (1983), that the only way Congress can pass a law is for both houses to vote, and then subject the law to a Presidential veto. The case overturned a "legislative veto," in which a single house (or both houses) of Congress could overturn an action by the INS. Without this case on the books, you can bet for sure that McConnell would have suggested a legislative veto over the President's debt ceiling raising. Ok, maybe not for sure, as that would give Congress too much power, when the goal here is to be able to say their hands were tied.

Anyway, because this is equivalent to a full law that Congress could pass any time, it is only the guarantee of being expedited that adds anything in this scheme, making it mostly pointless. Practically pointless, however, is not unconstitutional.

(5) At this point, we're in the fantasy land where the law passed, Obama, raised the debt ceiling, the disapproval vote passed, Obama vetoed, and two thirds of Congress overrode. Nonetheless, I'm curious about this. The law would require Obama to list programs he would cut, with no legal effect whatsoever. It's a pure hypothetical. I'm curious whether a) this violates the separation of powers or b) it's an arbitrary and capricious law, both of which are valid constitutional challenges to an act of Congress. On separation of powers, forcing the President to state his policy objectives publicly seems a usurpation of a right given solely to the President. That is, because that have no legal effect, then they are mere policy objectives, rather than law, and Congress really has no business there. Even if that's not the case, I cannot see a rational purpose in the law's requirement of a list of hypotheticals. Congress is always held to a standard that laws must not be arbitrary or capricious. It's a lax standard, but political maneuvering is decidedly not a legitimate government interest. Given they're asking for a hypothetical, I'm not sure they have a legitimate interest.

If it is unconstitutional, all that means is that Obama is free to ignore it. No one will have standing to challenge, and so it won't get into court. But each branch of government has a duty to uphold the Constitution. Additionally, as Jack Balkin recently explained with respect to the constitutional aspect of the debt ceiling crisis as a whole:

You may ask: what good is saying that the Republicans are acting unconstitutionally if President Obama is unwilling to threaten to raise the debt ceiling by himself? The question answers itself: If the public believes that the Republican Party is violating the Constitution and the President is defending the Constitution, that puts a different sort of pressure on Republicans.

The public treats Constitutional arguments differently than policy arguments. That's why the discussion matters in this case, even though the courts would not be involved. I doubt anyone bothers with the discussion though, as this law most likely won't be the one passed, and as I said, (5) only comes about in a fantasy land.