The Constitutionality of the Joint Select Committee on Deficit Reduction (Established by the Recent Debt Ceiling Act)

The Committee, the Wikipedia entry labeled “United States Congress Joint Select Committee on Deficit Reduction” but redirected from “Super Congress” tells us (as of the time I write this),

is an illegal, unconstitutional joint select committee, created by the Budget Control Act of 2011, enacted on August 2, 2011. The Act was intended to consolidate dictatorial power and prevent the rapid process of sovereign default that would have resulted from the 2011 U.S. Debt Ceiling Crisis and forced the U.S. government to be more accountable for their actions.

I expect that the rhetoric will be removed in the Wikipedia entry in due course, but I’ve heard others likewise argue that the committee is somehow an unconstitutional “Super Congress” to which congressional power has been improperly delegated.

I don’t think this is right; Amanda Rice (Just Enrichment) has a good analysis of why the plan for the Committee (see Title IV of the Budget Control Act) is indeed constitutional, and commenter Brian Bishop adds more on the nondelegation point. Here’s my quick analysis:

1. Article I, § 5 of the Constitution provides that “Each House may determine the Rules of its proceedings.” This is the basis for how a wide variety of Congressional decisions are delegated in the first instance to committees, and how some matters are delegated to joint committees. And the Act makes clear that, “The provisions of this title are enacted by Congress … as an exercise of the rulemaking power of the House of Representatives and the Senate, respectively, and as such they shall be considered as part of the rules of each House, respectively, or of that House to which they specifically apply.”

2. This power doesn’t extend to actually allowing some other body, whether a Committee or not, to do things that themselves have the force of law. (See INS v. Chadha.) But under this proposal, the Joint Select Committee would simply submit its work product to Congress; as usual, the House and the Senate would decide whether to enact the law, and the President would decide whether to sign it. To be sure, the fast-track mechanism, with the restrictions on amendments and on the time available for debate, is unusual, and is intended to make the Committee’s work product especially influential. But again that’s part of the Houses’ power to make rules — the time available for debate and the possibility of amendment are themselves artifacts of the current rules of the Houses, and each House may alter those rules for particular kinds of legislation. (My understanding is that this is what has happened, for instance, with the fast-track trade agreement rules.)

3. Of course, the rules made by the Houses at one point may be changed later, and the Act acknowledges this: “The provisions of this title are enacted by Congress … with full recognition of the constitutional right of either House to change such rules (so far as relating to such House) at any time, in the same manner, and to the same extent as in the case of any other rule of such House.” It might be politically difficult to go back on the fast-track system created by the Act — just as it’s politically difficult to cut back on the filibuster in the Senate, another example of an important feature of our political system that’s created by a Rule of one of the Houses — and I think the authors of the Act wanted that to be politically difficult. But that doesn’t make the rule change unconstitutional.

Congressional power questions aren’t my core area of expertise, so perhaps I’m missing something here. But my sense is that the establishment and the planned operation of the Joint Select Committee are constitutional, whatever pragmatic objections there might or might not be to this approach.

UPDATE: I originally just said that that the Wikipedia material was quoted from “the Wikipedia entry,” but I revised this when I realized — prompted by a reader comment — that the language is now present only in the entry at http://en.wikipedia.org/wiki/Super_Congress, which is titled “‘United States Congress Joint Select Committee on Deficit Reduction … (Redirected from Super Congress).” That text has been removed in the http://en.wikipedia.org/wiki/United_States_Congress_Joint_Select_Committee_on_Deficit_Reduction entry, and I expect that it will soon be removed from the other entry as well. Unfortunately, the “revision history” link at the Wikipedia “Super_Congress” entry actually points to the revision history for the other entry, so it wasn’t clear what was happening; and it appears to me that the “edit” link at the “Super_Congress” entry also points to the page that edits the other entry (though I just looked at the link, without trying to edit it). It sounds like the Wikipedia redirection technology has a bit of a bug there.