Legislative Entrenchment and Federal Fiscal Policy

By Doran, Michael | Law and Contemporary Problems, Spring 2018 | Go to article overview

Legislative Entrenchment and Federal Fiscal Policy


Doran, Michael, Law and Contemporary Problems


I

INTRODUCTION

Amid concerns about government debt, the 112th Congress passed the Budget Control Act of 2011 to reduce the federal government's budget deficits. (1) The law set out caps on discretionary spending for each fiscal year over the following decade and required sequestration of discretionary spending to enforce those caps. (2) It thus attached specific policy consequences to specific actions (or inaction) by future Congresses. If, for example, Congress in 2016 exceeded the spending caps for that year, the sequestration prescribed five years earlier would take hold. But succeeding Congresses chafed under the strictures. With considerable self-congratulation, the 113th Congress relaxed the spending caps for fiscal years 2014 and 2015 in the Bipartisan Budget Act of 2013, the 114th Congress relaxed the spending caps for fiscal years 2016 and 2017 in the Bipartisan Budget Act of 2015, and the 115th Congress did the same for fiscal years 2018 and 2019 in the Bipartisan Budget Act of 2018. (3) Those developments surprised few close observers of the federal budget process. The idea that a later Congress would adhere to significant spending caps enacted by an earlier Congress seemed fanciful from the start.

But what if the 112th Congress had not simply set out specific policy consequences that a later Congress could reverse but instead had purported to bind its successors? What if the Budget Control Act of 2011 had provided that no later Congress could repeal or modify the spending-cap and sequestration provisions? The possibility of such legislative entrenchment presents an enduring puzzle. For decades, legal scholars have debated whether legislative entrenchment is possible under the Constitution and desirable as a matter of policy. That debate has produced surprisingly limited insights. The aim here is to present a fresh analysis of the puzzle through a particular focus on federal fiscal policy.

In general terms, legislative entrenchment is legislative action that prevents or hinders action by a simple majority in a subsequent legislature. The dominant position among legal scholars--including Charles Black, Aaron-Andrew Bruhl, Erwin Chemerinsky, David Dana, Julian Eule, Catherine Fisk, Paul Kahn, Michael Klarman, Susan Koniak, John McGinnis, Michael Rappaport, John Roberts, Stewart Sterk, and Laurence Tribe--holds that legislative entrenchment is unwise, uncommon, and unconstitutional. (4) In a prominent criticism of that position, Eric Posner and Adrian Vermeule concede that legislative entrenchment is rare but argue that it is nonetheless sound as a matter of both policy and constitutional law. (5)

The two sides distinguish between what can be called "hard entrenchment" and what can be called "soft entrenchment." "Hard entrenchment" is legislative action that strictly binds a simple majority in a subsequent legislature. (6) A federal statute requiring Congress to enact a balanced budget and also prohibiting Congress from repealing or modifying the requirement, whether absolutely or by simple majority, would be a case of hard entrenchment (assuming the prohibition were effective). "Soft entrenchment," by contrast, is legislative action that impedes (but does not strictly bind) a simple majority in a subsequent legislature, thereby making a change to the policy status quo by simple majority more difficult or less likely than it otherwise would be. Soft entrenchment covers a broad spectrum of possible legislative action. At one end, every statute entrenches a policy outcome simply by setting that outcome as the status quo. A budget passed by Congress for a subsequent fiscal year is at least modestly entrenched because any change must overcome a legislative bias favoring the status quo. At the other end, the Senate filibuster and the Senate rule that nominally protects the filibuster entrench the status quo to a much greater extent; defeating a filibuster requires either a supermajority coalition to invoke cloture or a majority agreement to amend the standing rules of the Senate. …

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