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Tuesday, October 8, 2013

Rosenzweig: The Article III Fiscal Power

Adam H. Rosenzweig (Washington U.), The Article III Fiscal Power, 29 Const. Comm. ___ (2014):

What should happen when Congress and the President find themselves in a fiscal policy showdown resulting in a Constitutional violation? This question has risen to the fore in light of the recent political showdowns over the so-called “debt ceiling.” But the question is one that reaches far beyond the debt ceiling debate. Rather, it implicates the broader question of the proper role of the coordinate branches to make the government work within the Constitutional framework.

To this end, this Essay analyzes the proper role of the federal courts, and the Supreme Court in particular, in remedying Constitutional violations arising from fiscal policy showdowns between Congress and the President. In such circumstances, this Essay demonstrates the courts can, and should, have an independent fiscal power under Article III of the Constitution to remedy the Constitutional violation. While this may seem radical at first glance, it is merely an extension of well-established powers of the federal courts to remedy Constitutional violations in other settings. Looked at from this perspective, the Article III fiscal power makes sense, both from a doctrinal and theoretical point of view. Through a robust, but limited and well demarcated, Article III fiscal power, the country can avoid continuing Constitutional Crises arising over the use of the fiscal power, whether it be in the context of the debt ceiling, the tax laws, or otherwise. Only in this manner can the full extent of the Constitution’s fiscal power be realized.

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