Cutting Off Congress
posted by Gerard Magliocca
I was on Sirius XM POTUS the other day talking about the debt ceiling, and we batted around an interesting hypothetical raised by a caller. Suppose we hit the debt ceiling and the President responds by cutting spending (while continuing to pay the interest on Treasury bonds). As part of that austerity, he declares that no member of Congress shall be paid until the debt ceiling is raised. Would that be constitutional?
One thought would be “no” because the Treasury’s failure to pay members of Congress when the Executive Branch has the ability to do so would violate separation-of-powers. (Note that this claim would be even stronger if the President selectively refused to pay, say, only Republicans.) On the other hand, one could say that the Constitution says nothing about the sanctity of congressional salaries, whereas it does say that the salaries of the President and of federal judges may not be lowered (at least in nominal dollars). Should that omission be considered irrelevant because there is a structural principle about the security of salaries for significant federal officials, or does it suggest that Congress must take care to ensure that its salaries can be funded with some kind of legislation?
January 10, 2013 at 8:24 am
Posted in: Constitutional Law
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Responses (6)
Ken Rhodes - January 10, 2013 at 2:08 pm
Generally, most government contracts warn the contractor that their work may be halted unilaterally by the Contracting Officer “for the convenience of the government.” So in the hierarchy of federal spending, a substantial amount of monthly expenses are for contracted items that could be cut off, at least temporarily, by the Contracting Officer issuing a Stop-Work order.
The Executive Branch probably then has the authority to furlough workers of that Branch–i.e., anybody from low-paygrade Civil Servants up to and including Cabinet Secretaries. After all, their chain of command goes up to the Prez.
Whether the Executive Branch can furlough workers of the Legislative and Judicial Branches might be questionable.
Brett Bellmore - January 10, 2013 at 7:02 pm
Considering that half the members of Congress are millionaires, they’d be hard put to make a plausible claim of hardship.
I don’t see a big problem with it, for that reason. So long as the cutoff wasn’t selective, as you point out.
Joe - January 11, 2013 at 10:20 am
“for that reason”
Are the half that are millionaires supposed to give the other half aid, or what?
I’m inclined to think a consistent rule that is not just limited to members of Congress is constitutional. If necessary, as with state immunity issues, the 14A provision can be deemed to override other concerns. OTOH, prudence at least might warrant this to be a last resort.
Phil - January 11, 2013 at 11:35 am
Such a move would violate the Anti-Deficiency Act – one cannot work for the government in a volunteer status, even temporarily. If you work, you must get paid.
It could be argued it also violates the Impoundment Control Act: when Congress appropriates money for a particular use, the Executive does not have the option of not doing it.
Brett Bellmore - January 11, 2013 at 5:46 pm
That’s kind of the point: When Congress orders the President to spend more money than they make available to him, every option involves violating a law. Might as well violate one dear to Congress, to motivate them.
richard vinet - January 20, 2013 at 2:11 pm
Surprised no one has mentioned the 27th amendment relative to congressional pay.
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