Don’t expect promised spending cuts to materialize

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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Voters should be wary of congressional promises to cut spending or taxes at some future date. Even when such promises are embedded in current legislation, politics, not law, will determine whether they are kept.

Although there was once ample time for Congress to devise comprehensive legislation to set the federal government on a path to resolving its escalating debt problem, politics and neglect have now left Congress with barely a week to devise a solution. Whatever finally emerges from the ongoing negotiations, it is certain to rely heavily on promises of future debt ceiling adjustments, spending cuts and tax reform.

It would be foolhardy to predict what Congress and the president will settle on, even days before the stated deadline. Only time, short as it is, will tell. It would be equally foolhardy for Republicans to agree to a deal that depends largely on promised future spending cuts. The reason is that Congress has no enforceable obligation to comply with its promises.

Not to suggest that Congress always reneges on its promises. The very first Congress fulfilled a promise critical to the founding of the Republic. As originally drafted and proposed to the states for ratification, the Constitution included no bill of rights. A few states, New York in particular, refused to sign unless it was agreed that the very first act of the first session of Congress would be the adoption of legislation proposing a bill of rights.

The promise was made, and in a remarkable act of trust, the Constitution was ratified. But there was nothing other than good will and political circumstances that led Congress to fulfill the promise.

Indeed, to claim that there was a legal obligation on Congress to pass legislation proposing a bill of rights would contradict an essential premise of democratic republicanism. If the people are the source of all government authority and they delegate that sovereign power to their elected representatives to state conventions for the purpose of ratifying the Constitution, it would be a denial of that popular sovereignty for Congress to be bound by a promise made on its behalf. And so it would deny the sovereignty of the people for one Congress to bind or commit the next. The people are entitled to change their minds, and to demand that their representatives reflect those changed minds in new legislation or the repeal of old legislation.

As much as the Democrats might have liked to do so, not one among them would have suggested that the Patient Protection and Affordable Care Act (Obamacare) could contain a provision prohibiting or conditioning its amendment or repeal by future Congresses. Nor can the current Congress pass a binding law promising future cuts or increases in spending or taxes.

Congress can, as it did in enacting the Bush tax cuts of 2001, schedule for new tax rates to expire and the old rates be reinstated at a particular future time. But even that is no guarantee. Congress could extend those new tax rates (as it did in 2011) or it could reinstate the old rates at any time before the scheduled expiration date.

In other words, with the exception of contractual obligations which bind the government of the United States, promises of future action or inaction by Congress have no legal force. They may have moral force. They may force members of Congress to make difficult political choices. Congress may even devise procedural gimmicks that purport to bind future Congresses. But the reality is that every act of Congress that has not created a contractual obligation can be undone by the Congress that enacted it or by any future Congress. There is no other way for a democratic republic to function consistent with its fundamental premise of popular sovereignty.

This is not to say that Congress should not engage in long-range thinking about how to solve problems like the extraordinary debt and unsustainable entitlement commitments now facing the country. These problems will not be solved overnight or in a single session of Congress.

But any political deal that meets one side’s demands up front and promises to meet the other side’s demands in the future is a bad deal for the side that bets on the come. Congress has no legal obligation to deliver on its promises, and has demonstrated over two-plus centuries that the promise kept at the founding of the Republic was an unusual and fortuitous act of good faith.

Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.