Legal Commentary

Entrenchment Provisions in the Health Care Bill

By Eric Posner

Jonathan notes that the health care bill includes certain ?entrenchment? provisions, and asks, ?can the current Senate bind future Senates in this way??  If I understand the bill correctly, it creates an independent board that recommends ways to limit Medicare payments.  These recommendations go to the president, who in turn is supposed to submit them to Congress.  Congressional procedures are likewise constrained.  The Senate, for example, cannot debate the proposal for more than 30 hours; there are limits on House procedures as well.  The idea seems to be to constrain filibustering and other parliamentary maneuvers that would defeat cost-saving legislation in the future.  As Jonathan notes, the bill further provides that these constraints cannot be overturned by majority rule but require a 2/3 supermajority.

Can Congress bind itself in this way?  As it happens, I have written a paper on this topic (with Adrian Vermeule).  The short answer is ?no,? or at least, no one thinks that Congress can bind itself in this way.  (For some Supreme Court dicta, see U.S. v. Winstar, 518 U.S. 839, 872 (1996)).  A Congress at time 1 can pass all the entrenchment provisions it wants, but Congress at time 2 can repeal them by majority rule, rendering the entrenchment provision nugatory ex ante.

Academics have spent a lot of time justifying the restriction on entrenchment, but, our paper argues, have failed.  Some scholars make conceptual arguments: Congress can?t bind future Congresses to supermajority rules if every Congress rules by majority.  But these conceptual arguments are clearly wrong, as Article V of the Constitution shows (and, indeed, the Senate?s own internally enforced supermajority rules).  It is certainly possible to entrench policy; the question is whether courts or other relevant agents will respect the rules.  Most scholars seem to fear that if Congress can entrench legislation, then it will resolve all questions today that might come up in the future, depriving future generations of their right to self-government.

The problem with this argument is that Congress can already bind the future in uncontroversial ways.  It borrows money, compelling the future to repay or suffer a loss of credit.  It starts wars, compelling the future to finish them.  Everything Congress does affects future generations, for good or for ill.  Imposing restrictions on its own procedures is not really distinctive.  If you think Congress should be able to do anything at all, then you are probably compelled to conclude that it ought to bind itself.  In this instance, part of the health care deal is a commitment by Congress to restrain growth in Medicare spending.  Since people don?t believe that Congress will actually control Medicare spending if normal parliamentary procedures are used, the Senate is trying to entrench this commitment.  Unfortunately, it will fail?at least, if it depends on the courts to enforce these rules.  It is possible that the rules will create a political entrenchment of some sort, but it is hard to tell.

Full post as published by The Volokh Conspiracy on December 22, 2009 (boomark / email).